Obama’s response to surge of illegal immigrants at border? Free lawyers for illegal immigrants!

Because of the Obama administration’s lax enforcement of U.S. immigration laws, its policy of prosecutorial discretion allowing illegals not convicted of serious crimes to remain in the U.S., its executive order deferring action on illegal aliens who enter before age 16, and its advocacy for a broad general amnesty for illegal immigrants as passed by the U.S. Senate, illegal immigrants have been encouraged to cross the border from Mexico in record numbers, including record numbers of minors.

The response of the Obama administration to that surge is not to reconsider the policies that have been encouraging illegal immigration to the U.S. Instead, on Friday, June 6, Attorney General Eric Holder announced a new $2 million taxpayer-funded federal grant program to hire 100 new lawyers and paralegals to represent undocumented minors in their proceedings before the immigration judges who work for Attorney General Holder.

I’m a law professor, and I ought to support the creation of new jobs for the graduates of American law schools. But as a taxpayer I’m concerned about the precedent the administration is setting in hiring lawyers to represent non-citizens, even non-citizen children, in civil, non-criminal immigration cases.

There is a historic distinction in the law between criminal proceedings which propose to punish a defendant, and civil proceedings such as immigration removal which do not propose to punish anyone, but merely seek to resolve civil disputes. The U.S. Supreme Court held in 1963, in the famous case of Gideon v. Wainwright, that criminal defendants who could not afford lawyers were entitled to taxpayer-funded lawyers to represent them in criminal litigation. But that constitutionally-based right has never been extended to civil litigation such as home foreclosure or child custody.

Immigration law enforcement has been deliberately structured by Congress to be handled administratively to minimize the burdens on federal Article 3 courts. Criminal penalties are not imposed by immigration judges who work in the executive branch of the federal government. As in other civil litigation, until now taxpayer-funded lawyers have not been provided to represent indigent persons answering charges in immigration removal proceedings. Immigration judges are given exceptional powers and obligations to insure that the interests and rights of non-citizens are protected. And since immigration judges work for Attorney General Eric Holder, he can direct them to prioritize such powers and obligations.

If our government could afford it, providing free taxpayer-funded lawyers to all indigent litigants might have some appeal as a way to improve our justice system and to create additional jobs for lawyers. More lawyers always means more justice, right? But why should non-citizens in removal proceedings receive free taxpayer-funded legal representation when U.S. citizens in high-stakes civil litigation do not?

U.S. citizens appealing loss of their homes through foreclosure are on their own. U.S. citizens contesting wrongful loss of their jobs do not receive free government lawyers. U.S. citizens contesting the loss of custody over their children can have all the legal representation they can find or pay for themselves.

If we’re going to spend $2 million taxpayer dollars to hire new lawyers to represent indigent people in civil, non-criminal administrative proceedings, shouldn’t U.S. citizens faced with losing their homes or their jobs or their children be our priority?

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