Monday, March 7, 2016
Immigration Judges, Mental Gymnastics, Cognitive Dissonance, and the Necessity for Appointed Counsel by Geoffrey A. Hoffman
Immigration Judges, Mental Gymnastics, Cognitive Dissonance, and the Necessity for Appointed Counsel
Recently it came to light that an immigration judge (importantly, an Assistant Chief Immigration Judge who trains other judges and not just any immigration judge) opined that 3 or 4 year-olds were capable of representing themselves in removal proceedings. This shocking statement was made during a deposition. According to EOIR he was speaking in his private capacity so the statement cannot be attributed as an official position. He said that he had “taught” these young respondents “immigration law,” and although it was apparently “difficult” they can be made to “understand” the proceedings.
I have written previously about EOIR and the paradox of immigration adjudication, see here, as well as the need for better immigration judges and a better selection process, see here, but this latest revelation cannot go by without reflection.
It is a very important window into the thought processes that undergird this entire broken system. I want to discuss several points since this latest revelation needs to be understood in context. I have three separate points: (1) IJs must engage in a kind of mental gymnastics to be able to look at themselves squarely in the mirror each day; (2) the position of an IJ is a daily exercise in dealing with the extreme cognitive dissonance the job entails, and this is only one of the many instances of dissonance that judges face; and (3) the deportation of babies, toddlers, children more generally and other vulnerable groups must stop unless or until there is a uniformly applied and guaranteed right to counsel who are appointed at government expense, or through a hybrid government/privately sponsored program such as the Immigration Justice Corps currently operating in New York.
The first point seems to me obvious. People basically wish to do good, wish to see themselves as good, moral and just individuals. Essentially, we all want to see ourselves as good actors. Judges especially do not wish to perceive themselves as violating the Constitution, contravening the law or sending someone back without a full and fair hearing. But how do you do that without an attorney for the respondent especially where a child is being processed as a UAC (unaccompanied alien child) but also as part of a case with his or her parent, as part of an AWC (alien with children) case in the parlance of EOIR. No one wants to admit to themselves that as a judge they allowed a child to be sent back to a country where they could be killed without any understanding of the proceedings or the ability to mount a defense. That would invite moral reprobation. The only way to resolve this apparent injustice is to make a stab at convincing oneself that the proceedings really are fair, and the only way to do that is to imagine a world where a 3-4 year old is prescient, understanding, and capable of representing themselves.
Essentially, these judges (to maintain their own sanity) must create a world in which what they are doing is in compliance with due process, justice, and the oath they took as lawyers and judges to uphold the law. The reality unfortunately is that it must be very, very difficult to maintain this belief where 86 percent of those families with deportation orders (AWCs) had no attorney to assist them in their cases. See Syracuse statistics. Importantly, the chances are increased 14-fold if one of these families had been afforded an attorney to assist them. See here. Simply put, having worked with these families and especially at Karnes, there is no way that many of these women and certainly no UAC will be able to prove up their cases without some type of legal assistance from a qualified attorney.
The second point is that people strive not just to do good, but they also strive for internal and external consistency, i.e. they work to resolve cognitive dissonance and inconsistent behaviors. Cognitive dissonance can arise from many situations and clearly does arise in many of our daily interactions. Most people have a range of techniques to deal with cognitive dissonance. I do not pretend to fully advise what these are, but suffice it to say, people certainly employ a host of heuristics and other shortcuts, such as ignoring negative evidence and overemphasizing other evidence to support a predetermined perception, viewpoint, or goal. This is not atypical, nor is it necessarily wrong, immoral or misguided--probably if we did not do it to some extent it would be difficult to get through the day. But the heuristics which immigration judges use in their personal lives should not be allowed to bleed through into their professional lives.
Take a concrete situation. A child who is 3-4 years old is before the court. The records reflect he or she is clearly eligible for special immigrant juvenile status, i.e. they have been abused, abandoned, or neglected and it would not be in their interest to be returned to their country of origin, among other requirements under the governing statute. The judge knows this. However there is no lawyer to file the requisite family petition and obtain a predicate order. The DHS trial attorney is not going to do it. The judge is not going to do it. He can grant a continuance to allow the toddler to “look for” an attorney, but realistically unless there is a pro bono organization willing to file the declaratory action in family court or similar venue, the child has no other relief. Maybe the child has a potential asylum claim. Without counsel, the child will be unable to articulate her particular social group, other enumerated ground, nexus, inability to internally relocate, etc. Do judges deport such children? They do. But how are such deportations consistent with Fifth Amendment due process? How do they effectuate a just outcome? Do we uphold our values as Americans when such children go back to Honduras, Guatemala, El Salvador? How about when they are killed or abused further upon their return? Do we want a Donald Trump immigration system, well for many respondents, guess what, we already have one…
My third point is that there 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.