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In what appears to be a novel ruling, a federal judge in Spokane, Wash., has ordered the government to hire a lawyer for a child being held for deportation by the Immigration and Naturalization Service (INS). “It does set a precedent, because this is the first time a federal judge has recognized this is a very serious proceeding,” says Rhonda Brownstein, a lawyer with the Southern Poverty Law Center, who is representing the child. The case is part of a class action challenging the INS policy of not providing children with lawyers when they are facing deportation in immigration proceedings. “They’re facing a highly adversarial proceeding against a highly trained government attorney,” Brownstein says of underage detainees facing INS proceedings. “It’s a real court, with a real judge and a real lawyer on the other side.” The ruling concerned a 14-year-old Mexican boy, Marcos Gonzalez Machado. His father died when he was young, and his mother abandoned him, leaving him in the care of his grandfather. For nine months he lived with his aunt and uncle, who are U.S. citizens, in Seattle. In February, he was kidnapped at gunpoint, the class action lawyers say, declining to give details. When he went to a police station to report the crime, Brownstein says, the police notified the INS, and he was placed in a secure juvenile detention facility. Although he was accused of no crime, Machado was treated like the other prisoners, the lawyer says. He was handcuffed and shackled when transported to and from the immigration court. Because he was unable to speak or understand English, attorneys bringing the case say, Machado didn’t understand the proceedings and accepted voluntary deportation to Mexico. Shortly before he was to be taken to the airport, the lawyers bringing the suit stepped in with the request to the judge for a preliminary injunction. On March 5, Fred Van Sickle, chief U.S. district judge in Spokane, Wash., issued a preliminary injunction giving the INS a day to arrange for Machado’s release or pay for an attorney to represent him in the detention aspect of the case. Machado v. Ashcroft, No. CS-02-0066-FVS. “In light of the significant hardships to the plaintiff of continued detention pending resolution of this matter (which will certainly take several months), the Court orders that if the parties cannot work out some agreement with regard to the plaintiff’s release by noon on March 6, 2002, counsel will be appointed at government expense to represent the plaintiff in connection with his release from INS custody only,” the judge wrote. The INS did not release Machado, and Marie Higuera of Seattle’s Gibbs Houston Pauw was appointed to represent him in an effort to get him released to his family in Seattle. The government has not yet filed any papers in the case. William Beatty, the Assistant U.S. Attorney handling the suit, declined to comment on the judge’s ruling but said he was uncertain whether the government would appeal. “It’s our position that the law does not require appointment of counsel at government expense,” he says. The INS also declined to comment specifically on the ruling, but a spokesman said, “We have no statutory authority to use government funds to provide counsel for any individual who is in immigration proceedings in the U.S.” Aliens detained by the INS are not granted attorneys at government expense because immigration proceedings are considered civil actions. INS officials also note that the Immigration and Nationality Act prohibits the government paying for attorneys for the children. Machado’s suit is part of a class action, filed in February on behalf of all minors detained without counsel challenging the constitutionality of the policy. Machado’s lawyers, who also include attorneys from the Northwest Immigrant Rights Project and Columbia Legal Services, claim that the denial of appointed counsel is a due process violation of the Fifth Amendment. “It’s really an anomaly in our justice system that we leave children to fend for themselves in the court. There’s really no other situation where we do that,” says Brownstein. Under In re Gault, 387 U.S. 1, she believes children are entitled to counsel, and is arguing that in the class action. The ruling, and the class action, are providing more fire for attorneys and advocates who have been trying to get lawyers for minors, mainly through a legislative approach. On Feb. 28, the U.S. Senate Judiciary Committee and the immigration subcommittee held hearings on a bill sponsored by Sen. Diane Feinstein, D-Calif. Bills S-121 and H.R. 1904 would require that counsel and guardians for unaccompanied minors in INS custody be appointed. The law firm Latham & Watkins has been involved in lobbying for the bill on behalf of the Women’s Commission for Refugee Women and Children. Andrew Morton, a Latham & Watkins lawyer, testified at the hearings that of 5,000 minors in INS custody, more than half don’t have lawyers. INS officials testified that the Justice Department would like to have the money and authorization to provide counsel to these juveniles. Stuart Anderson, executive associate commissioner for policy and planning for the INS, testified that the agency is committed to minimizing detention for unaccompanied minors and plans to establish an office of juvenile affairs to help do so. He testified that fewer than half of the more than 5,385 juveniles in INS custody last year were placed with relatives. For the other 2,968 juveniles, 500 beds were available in nonsecure shelter programs, he said. About one-third of all minors held by the INS spend some time in juvenile jails, Morton says, and the rest go to other secure facilities.

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