Immigration policy—specifically the policy of separating children from their families—has made a lot of headlines of late. Who knows, perhaps the seemingly inhumane treatment of those who show up at the (especially southern) border of the country might, to steal a line from Robert Shenkkan’s recent play Building the Wall, legitimately prompt the question “who would want to come here now?”. But this essay isn’t about the arguments—ethical or pragmatic—in favor of or opposed to this strategy.
Rather, it’s about the meme you see on the left and its implications. An FOC recently posted this on her Facebook page. To be honest, despite Curmie’s antipathy for all things Trumpian, a statement this transcendently idiotic just didn’t seem possible. Surely Judge Weil couldn’t announce himself less fit for public office if he stripped naked, covered himself in caramel sauce and whipped cream, climbed into the bed of a pickup truck and belted out “I’m a Moron” to the essentially unsingable tune of “I’m a Jayhawk,” the fight song of Curmie’s beloved doctoral alma mater. It just couldn’t be true, right? Or perhaps he simply misspoke and shouldn’t be held accountable for a slip of the tongue (Cf. Barack Obama doesn’t really think there are 57 states).
Nope. This drivel escaped Weil’s mouth in the course of a deposition before a federal court. According to the Washington Post story that broke this news,
Ahilan Arulanantham, deputy legal director at the ACLU of Southern California and the attorney who questioned Weil in the deposition, said he initially thought the judge had misspoken, “because what he said was so outrageous. As I asked further questions, he obviously meant what he said.”
Wow. Weil, part of whose job is to teach other judges how to handle such cases (!), subsequently declared, “I’ve taught immigration law literally to 3-year-olds and 4-year-olds.” Okay, no doubt about it, this guy is nuttier than squirrel turds. Curmie shook his head in disbelief that even the Trump DOJ would hire someone so obviously inept. A check on the DOJ website confirms that his official title is Assistant Chief Immigration Judge.
Oops! Problem! Weil made these outrageous claims while Obama was still President, and indeed was appointed during the Obama administration. And while it is true that Loretta Lynch (AG at the time of Weil’s most public stupidity) and Jeff Sessions are among the worst cabinet-level appointees in recent history, one would have thought that even they might have seen what a buffoon Weil is. Apparently not.
Let’s face, most adults wouldn’t stand a chance of getting a fair hearing without a lawyer, and these are little kids who quite probably don’t speak English and are being asked some pretty complicated questions by an intimidating stranger. Curmie does not assume that every asylum-seeker has a case, but the fact is that the world is often a nasty place, and even children are often in danger. Think of Herod’s massacre of the innocents, or the fates of the Trojan prince Astyanax, or the princes in the Tower under Richard III; brutality towards children to further a political cause is not a modern invention. But what are the odds that a child with a legitimate plea would receive justice in this arcane world?
Here’s a little more from that article in the Post:
At such hearings, children face the same types of immigration charges as adults, ranging from entering the country illegally to overstaying their visas. The children—most of whom cannot speak English and must use government-provided interpreters—are generally asked questions by judges such as when they arrived in the United States and whether they faced persecution in their home countries, according to court documents and immigration attorneys.But the questions can easily trip up children with no lawyers, the attorneys said. A judge may ask, for example, if the child wants to leave the country voluntarily or would rather be ordered deported. If the child chooses either option, he or she cannot apply for other forms of immigration relief such as asylum in the United States.
Yeah, a three-year old can see that trap coming, right, Judge Weil?
The DOJ didn’t deny that Weil’s assertion was utterly absurd, but they tried to distance themselves from the fallout:
Lauren Alder Reid, a spokeswoman for the department’s Executive Office for Immigration Review, said in a statement: “At no time has the Department indicated that 3 and 4 year olds are capable of representing themselves. Jack Weil was speaking in a personal capacity and his statements, therefore, do not necessarily [emphasis Curmie’s] represent the views of EOIR or the Department of Justice.”
Sure. That’s why Weil appeared as an expert witness, called by the DOJ. Were Curmie of a cynical disposition (perish the thought!), he might suspect a lack of total candor. Judge Weil’s sorry ass should be fired for embarrassing the entire DOJ, “personal capacity” or not.
And that’s really the key. Just tell us the truth. Yesterday, Curmie requested an article published in a Swedish professional journal through his university library’s inter-library loan office. The request was cancelled almost immediately, with a note that the article is only available in Swedish. Curmie is willing to bet next month’s mortgage payment that the article (as opposed to the journal) is indeed in English: the title is in English, the subject matter is an English-language play, the author was an English-speaking Canadian who had enough stature in the field that she didn’t need to work in another language (if indeed she was even capable of doing so). Tell me the truth: finding this article is going to be too much work and you very well might not be able to meet my deadline (I’m presenting the paper in three weeks’ time). Don’t tell me something I’m 99% certain is a lie.
Similarly, Curmie gets it that, according to current law, the DOJ is under no legal obligation to provide lawyers for children charged with violating immigration laws, and that the cost to do so would be considerable: a lot less than the Obama administration’s predilection for drone strikes in western Asia, or the Trump administration’s tax cut for the stinking rich, but considerable, nonetheless. So say that: “There is no requirement that legal representation be provided for these children, and in our opinion the cost to the American taxpayer outweighs the advantages to providing legal counsel to foreign nationals.” There are those on the left who might bitch about that statement—Curmie would probably be one of them—but it’s at least a comprehensible argument. Don’t feed us nonsense about how a non-English-speaking 3-year-old can hold his or her own in an immigration hearing.
Weil’s silly pronouncement drew a fair bit of criticism early on, including from three former DOJ judges—Bruce J. Einhorn, Eliza Klein, and Lory D. Rosenberg—who wrote in a brief filed in the U.S. Court of Appeals for the 9th Circuit that “A typical three-year-old cannot tie her shoes, count to 100, peel a banana, or be trusted not to swallow marbles.” Somehow Curmie suspects that these former judges doubt that the little girl in question would be just fine serving as her own counsel in an immigration case conducted in a language she doesn’t understand.
As such furors do, however, this one died down, and there was little more said about it for two years, until John Oliver, of all people, resurrected the story this April Fool’s Day: ironic timing for a very serious discussion. Describing “a critical, potentially life and death, process,” Oliver argued that “sadly, the system is a complete mess.” He then played clips of several legitimate authorities, closing with Judge Dana Leigh Marks of the National Association of Immigration Judges, who opines that “in essence, we’re doing death-penalty cases in a traffic court setting.” Yeah, that kind of gets your attention, doesn’t it?
Noting that the civil nature of immigration courts means that the government is not required to supply a lawyer to those who cannot afford one (indeed, only 37% of immigrants have counsel), Oliver urges his listeners to “think of an immigration hearing like surgery. You can try and do it yourself, but if you ever want to seeing your fucking family again, maybe try and get a professional to help you.” As for the children, as young as two years old (there’s a recent case of a 1-year-old), representing themselves, Oliver says:
That’s just clearly ridiculous. Because you cannot let a two-year-old be unsupervised in court. You can’t even let a two-year-old be unsupervised in a bouncy castle. They’re going to come out covered in glitter, holding a broken beer bottle and a dead bird. How did they get them in there? Who knows? The point is they can’t be left alone for a second, and that bird has already been in their mouth. It just has. You have to deal with that reality.
For the record, Oliver has a two-year-old son; he knows whereof he speaks. To Judge Weil’s claim to have taught immigration law to three- and four-year-olds—“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,” Oliver responds “No, it can’t! You can’t teach immigration law to the three-year-old. You can’t even explain to a child that age that Elmo isn’t his best friend.” By the way, check out the “mock trials” starting at 6:54 and 7:53 of the video linked above. Those little girls are both freaking adorable, but you will forgive Curmie for suggesting that perhaps they are not quite ready to represent themselves in a court case that might literally have life-and-death consequences, even if they do have an advantage over the majority of immigrants in that English is their native language.
Oliver then launches into a pretty thorough evisceration of the politicization of the immigration process and of the innumerable miscarriages of justice coming out of decisions made in haste (one appeal consisted of two questions and lasted less than a minute and a half), but those are outside the scope of Curmie’s remit today. We’ll also leave aside the question of Oliver’s consequentialism—the fact that bad things happened to an immigrant who was deported doesn’t imply that the decision to deport was inappropriate. Let us concentrate on one issue only: that the ability to understand the charges is one of the bedrock principles of any judicial system worthy of the name. (Yes, Curmie knows that immigration hearings are run by the executive branch, not the judiciary… you know what I mean.) No child whose age is a single digit can possibly do that. The immigration courts are a disaster. They were under Obama (and probably under Bush and Clinton, and…), and they certainly are now. Real, comprehensive, long-term solutions will take time, and will require greater expertise and wisdom than Curmie can offer, and a hell of a lot more than we can expect from Judge Weil or those who continue(d) to employ him.
But baby steps are possible. Providing at least adult advocates if not lawyers for literally every child in an immigration hearing would be a step. But first we have to be honest. Three-year-olds don’t “get it.” The current system cannot be allowed to continue unchanged. And Jack H. Weil doesn’t have brains enough to be a speed bump. Curmie chooses not to speculate as to why the meme is making the rounds right now, but the problem it addresses has been around for years, and still continues. Even if the meme was designed only to embarrass the Trump administration, it has, even if accidentally, brought some focused attention to a real issue. So let’s fix this one. One step at a time.
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