Class Counsel Blog

Immigration Debate: Weaving Politics with Class Certification

            With the explosive and divisive dialogue surrounding the immigration debate in Washington, D.C., it was inevitable that litigants would eventually seek judicial intervention.  On July 31, 2014, the American Civil Liberties Union, the American Immigration Council, and the Northwest Immigrant Rights Project filed a complaint and motion for preliminary injunction seeking to stop the expedited deportation of minors unless they receive legal representation.  J.E.F.M. v. Holder, 2:14-cv-01026 (W.D. Wash. 2014).   

            The litigants have asked the U.S. District Court to certify the class.  As opposed to the criminal setting, federal law does not require the government to provide legal representation to individuals facing deportation.  Rather, the individuals can either hire private counsel or seek representation through a pro bono organization or program.  With children, however, proponents of the current lawsuit argue that it is unreasonable to expect minors to adequately protect their own interests.  The Supreme Court stated in Kent v. United States, 383 U.S. 541 (1996), that minors should have legal representation when the outcome of the proceeding will have “tremendous consequences” on the minor.  Advocates in the current suit argue that deportation constitutes “tremendous consequences,” thus, legal representation is necessary.  While the federal government recently started a limited program to provide representation to children in deportation hearings through the AmeriCorps, thousands of children continue to appear at such hearings by themselves. 

            The named Plaintiffs in the class action include three siblings that witnessed their father’s murder in El Salvador and an abandoned 15 year-old boy who traveled from Guatemala to the United States by himself to escape abuse.  Overall, Plaintiffs seek certification of a class under Federal Rule of Civil Procedure 23 for “[a]ll individuals under the age of eighteen (18) who are or will be in immigration proceedings on or after July 9, 2014, without legal representation in their immigration proceeding.”  The alleged common questions of law and fact include the following: 

  1. Whether the Due Process Clause of the U.S. Constitution and/or federal statutory law requires the Government to provide legal representation for the members of the Plaintiff class; 
  2. Whether existing procedures suffice to protect the Plaintiff Class members’ right to a full and fair hearing as required by the Due Process Clause of the U.S. Constitution and/or federal statutory law. 

According to the Complaint, the claims of the named “Plaintiffs are typical of the claims of the Plaintiff Class as a whole . . . . [And] the individual Plaintiffs and their next friends will defend the rights of all proposed Plaintiff Class members fairly and adequately.”  Finally, the Complaint alleges that “[a] class action is superior to other methods available for the fair and efficient adjudication of this controversy because joinder of all class members of the Plaintiff Class is impracticable.  Moreover, members of the Plaintiff Class remain unrepresented in immigration proceedings and lack the ability to assert the claims made here.”   

            The current class action seeks to duplicate the success of a similar action on behalf of mentally handicapped individuals in deportation hearings.  In 2013, a group of mentally handicapped immigrants sought and obtained class certification of all similarly situated individuals facing deportation.    The U.S. District Court for the Central District of California held that appointing legal representatives was the only mechanism by which class members could defend themselves.  Franco-Gonzalez v. Holder, cv-10-02211, 2013 WL 3674492 (C.D. Cal. April 23, 2013). 

          Whether the current class has similar success in obtaining legal representation for minors remains to be seen.  Regardless of the outcome, however, it is clear that litigants will continue to utilize class action devices in highly-controversial topics such as immigration.        



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Attorney Spotlight

Stephen E. Embry is a member of the Firm's class action, privacy and mass tort groups. He frequently defends participants in consumer class actions and mass tort litigation. Stephen is a national litigator and advisor who is experienced in developing solutions to complex litigation and corporate problems.