Children Confounding the Courts: An Immigration Conundrum by Erika Portillo

Children Confounding the Courts; An Immigration Conundrum

 | Mar 01, 2019 | Comments 0

Separation of families at the border has been a big part of the news of late. According to the Department of Homeland Security, last Spring 2,342 children had been separated from their parents after crossing the Southern U.S. border. However, according to a report issued on January 17, 2019 by the inspector general for the Department of Health and Human Services, it was revealed that the administration separated thousands more migrant children from their parents at the U.S. border than has previously been made public. The report estimates that thousands of other youngsters were separated months before the government announced it would separate children in order to criminally prosecute their parents, through late last Spring. Previous administrations also separated minors from adults at the border in some instances, usually when it was suspected the child was smuggled, or the parent appeared to be unfit. The report documents a sharp increase in separations under the current administration.
Once separated from their parents, significant challenges face the U.S. government trying to re-unite them. Many parents had been deported or were not given any information about where their children would go, according to the Texas Civil Rights Project’s conversations with detained adults. As a result, children were in custody for more than 20 days in violation of the 1997 Flores Settlement Agreement.[1}

The Flores Settlement Agreement arose out of Flores v. Reno, a 1987 California case that went all the way to the United States Supreme Court. The parties reached a settlement ten years after the case initially arose. The Settlement outlined standards for detention and release of unaccompanied minors taken into immigration custody. It imposes several obligations on the immigration authorities, which fall into three broad categories:

In September 2018, the current administration proposed regulations that seek to terminate the Flores Settlement Agreement’s legal safeguards for children, including the provision that children must be transferred to a non-secure, licensed facility within three to five days of apprehension.[2} The proposed regulations include a number of policies which, if implemented, would allow the government to incarcerate more families for even longer periods of time. Many organizations and agencies oppose the proposed rule as it will eliminate any time limitation on incarceration by eliminating the requirement that family detention centers be licensed by an appropriate state agency. Instead it would allow DHS to self-license its own facilities, eliminating certain child safety and welfare standards for family detention centers; and further limit release options for children incarcerated in family detention who have not yet passed a credible fear interview. The agencies will decide whether to proceed with the final rule after reviewing the comments submitted.

Another issue children face after release from immigration custody is the lack of legal representation in immigration court. There is no Sixth Amendment right to counsel in immigration proceedings. Congress has recognized instead that the right is among the rights stemming from the Fifth Amendment guarantee of due process that adhere to individuals who are the subject of removal proceedings. As a result, it has been determined that immigrants have the right to be represented by counsel at their own expense under the Fifth Amendment. Section 292 of the Immigration and Nationality Act generally governs an alien’s right to counsel. Many children have appeared at court without counsel as they are unable to find representation. Judges are going forward with the hearings regardless of the children’s lack of competency to stand trial. Pending litigation attempting to force the government to provide counsel for children appearing in Immigration Court has not yet been decided. Meanwhile, many non-profits, such as Legal Services for Children are struggling to take as many cases as they can to defend children in immigration proceedings. The majority of those children fled their home countries after experiencing violence or threats of violence. The lack of counsel diminishes their chance to win their asylum claims and increases the chance they will be returned to the country in which they faced the danger.

The current immigration climate has brought into the open the many deficiencies of the immigration process, highlighting the urgent need for reform of the entire process and most particularly how we deal with the vulnerable children.

Erika Portillo is a partner at Guichard, Teng, Portillo & Garrett, with offices in Walnut Creek and San Francisco. She practices immigration law exclusively and is fluent in English and Spanish.

[1} The Flores settlement can be found at:

[2} The proposed regulations can be found at:

Photo published with permission from Linda Freedman and Non-Profit Immigration Advocates. Visit the website and support their work!


So many things happening in our legal world, it is hard to know where to start. So, where to start?

The year 2018 kept our legal community on its toes, right up to the last day. And 2019 wasted no time in taking the baton and charging ahead. The news is a whirlwind of activity, and most of it good. I must say I am very proud of our Contra Costa County Bar Association and the tremendous support we get in complying with ever more stringent requirements from the State Bar. Live scanning fingerprints is just one example of their conscientious help. Remember, that is a must, so don’t delay. (See page 37 for more information.)

Speaking of new rules, don’t forget to communicate in writing with your clients, prior to that mediation. New rule and new requirement.

The year ended with many new laws on the books which will impact all of us and our legal work. I know I am repeating myself, but we are a nation of laws and a community of laws. Lawyers are necessary and of great benefit in steering clients through the legal thicket. Be proud of your work. We saw the appointment of a number of new and familiar faces to our Contra Costa County Superior Court Bench. Congratulations to Wendy Coats who was supposed to take the helm as our new CCCBA President. Instead she will be wearing a black robe. James Wu gets the nod for another year as President. John Devine and Linda Lye were also appointed to our bench. And Judge Judy Craddick retired at the end of the year.

We also mourned the loss of some longtime local legal luminaries. We lost Bill O’Malley and Coley Fannin. Both served as president of the CCCBA back in the day. I knew both of them, having served as a Deputy DA under Bill O’Malley and having tried a number of cases before Coley Fannin, then using him as a mediator during his time at JAMS. I do recall being the Deputy DA in Bill O’Malley’s first case after being appointed to the bench. His name was on the “Information” and we had to get a waiver from the defendant to proceed with having the Judge be the same person whose name was on the complaint and the information. So, I thought I knew both of them pretty well. I was wrong! I attended the celebrations of their lives and learned new and fascinating bits of information about both of them. Sad but true we often do not get the real picture of a person until we attend the funeral. At any rate, their respective lifetime accomplishments were tremendous.

Speaking of accomplishments, the 2018 MCLE Spectacular was another great success. Kudos once again to the Bar Association. The new twist in the presentation of the speakers was very effective. Having the interview style was warm and intimate. Started off with Wendy having a chat with Associate Justice Leondra Kruger of the California Supreme Court. Seated in what looked to be quite comfortable chairs, the interview was a real treat. Don’t know whose idea it was for that interview method of presentation, but congratulations to whomever thought of it. Much better than the old grip the podium and deliver a lecture. The MCLE Spectacular just keeps getting better, and certainly the most well attended event legal event in the County. And I might add, the best way to see old friends and colleagues.

Still trying to see where all those Archer Norris lawyers and staff landed. I know David Marchiano, Michael Peterson and a couple of staff members landed with Brown Gee & Wenger. I also heard a team went to Lewis Brisbois. Haven’t heard those names yet. Let me know and I will mention their names in the next column. Our readers always want to know about people on the move.

Jumping to the 2019 Annual Installation luncheon; quite impressed with all the new faces. Our Bar Association and local Bench are ever changing, growing and adding many young and diverse members. No moss growing there! That event is also always a sellout and a must attend event. This year the focus was on “Diversity” and the presentation of a number of impressive diversity awards. Also an opportunity for James Wu to give a second “State of the Bar” speech. Did also enjoy Presiding Judge Barry Baskin’s speech on the seemingly ongoing attack on the judiciary. Timely and non-political. Once again, we are a nation of laws and the importance and absolute necessity of our independent judiciary cannot be stressed enough.

The Contra Costa High School Mock Trial Competition recently took place in our local courthouse. Thanks much to John Lance of the Contra Costa County Office of Education and all the volunteers who served as judges or attorney scorers. Volunteer next year. The high school students are very impressive. Hours and hours of preparation and many are more polished than real attorneys. Coley Fannin volunteered each year as a Mock Trial mentor at Acalanes High School. Several times he sat in my courtroom as I was the judge. Always wondered what he thought of my rulings.

Very troubling to see the State Bar passage rate as low as I have ever seen it. The November 2018 passage rate was an abysmal 40.7 %. percent. The ABA wants to see a first first-time bar passage rate of 75 percent in order to achieve ABA accreditation. Why has the rate fallen so and what can be done about it?

A final note on civility. It is a major tenant of the Inns of Court and something sorely missing in many of our legal engagements. As a client once told me “It doesn’t cost money to be nice.” Fortunately he was not directing the comment at me. At least I hope he wasn’t. Be prepared, know the law, insist on integrity and always be civil. And remember the only one who gets hurt when an attorney is a jerk is the client.

Matthew P. Guichard is a nationally recognized trial attorney and senior partner and founder of Guichard, Teng, Portillo & Garrett with offices in Walnut Creek and San Francisco California. Mr. Guichard specializes in general civil litigation, commercial litigation, general trial work, business transaction and alternative dispute resolution. He is the author of two columns for the Contra Costa Lawyer magazine: Civil Jury Verdicts and Bar Soap.


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