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Preschool Lawyers

toddler wearing a mortarboard and ASU jersey, seated on grass
photo by Megan Sparks

Marie Curie taught herself to read two languages at age 4. Tiger Woods was featured in Golf Digest for the first time at age 5. Mozart wrote his first symphony at age 8.

So obviously average kids at those ages should be able to manage something as simple as representing themselves in court, right?

At least one senior Justice Department official seems to think so. Jack Weil, an assistant chief immigration judge in the Executive Office for Immigration Review’s Office of the Chief Immigration Judge, was the expert the government offered in a federal court case in Seattle. In the course of his testimony, Weil defended the practice of allowing preschoolers to represent themselves in immigration court proceedings.

“I’ve taught immigration law literally to 3-year-olds and 4-year-olds,” Weil 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.”

For reference, most 4-year-olds who are not Marie Curie are learning to say simple sentences and build towers out of blocks. According to the Centers for Disease Control and Prevention, many children at four “often can’t tell what’s real and what’s make-believe,” which could pose some problems in court.

But hey, they can probably sing “The Wheels On The Bus,” if that helps. Though maybe not in English, since the kids in question are mostly from Mexico and Central America.

Weil’s testimony was meant to undermine the American Civil Liberties Union’s case, a class action in which the organization has teamed with immigrant rights groups to push for the government to provide counsel for children who cannot afford lawyers in immigration court proceedings. Currently, children charged with violating immigration laws have no right to court-appointed representation. As a result, 42 percent of the unaccompanied children in deportation proceedings between July 2014 and late December 2015 had no attorney, according to Justice Department figures.

In light of the incredulity over Weil’s comments, a spokeswoman for the EOIR disavowed that the testimony reflected the positions of the agency or the Justice Department. Weil himself attempted to walk back his position, arguing that his remarks have been taken out of context. Given that Weil’s job involves coordinating the training of other immigration judges, however, it is hard to imagine a context in which his remarks would not be worrisome.

The Justice Department’s main argument against assigning lawyers to indigent children has not, in fact, been that the children do not need them. Instead, Justice has argued that the taxpayer expense is potentially enormous, and that there is no constitutional requirement to provide counsel to minors in immigration hearings. Which is another way of saying that Justice Department lawyers like it better when they face no real opposition.

The law generally presumes that children lack the capacity to make consequential decisions, even in civil proceedings. In most states, minors cannot decide which parent will have custody in a divorce; they cannot sign binding contracts; they cannot file lawsuits without the help of a parent or guardian. And minors, like adults, are due a “full and fair hearing” in immigration cases under the Immigration and Nationality Act.

Senate Minority Leader Harry Reid, D-Nev., and other Democrats have introduced a bill requiring government-appointed representation for children in immigration court in cases where the child crossed the border alone or is the victim of duress. This may be a way to cut through the absurdity, if such legislation can pass. In the meantime, however, we are left with Justice arguing that there is no pressing need to spend taxpayer money to ensure that toddlers understand what a judge asks them.

Then again, toddlers can surprise you. A 2-year-old in South Carolina recently took her mother’s instructions on what to do in an emergency to heart, calling 911 when she needed help getting both legs into her pants. Give her another year or two, and I guess she’ll be ready for law school.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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