Justice Department’s Latest Action Violates Federal Immigration Law

Attorney General Eric Holder announced on June 6 the Justice Department will use taxpayer funds to “enroll approximately 100 lawyers and paralegals as AmeriCorps members to provide legal services” to “young people who must appear in immigration proceedings.” This will be accomplished through Justice Department grants to the Corporation for National and Community Service, a federal agency that administers AmeriCorps. Holder is calling it a “strategic partnership” that will establish a “justice AmeriCorps.”

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There is one big problem with Holder’s plan to fund legal representation for illegal aliens: It violates federal law. Federal immigration law (8 U.S.C. §1229a) lays out the rules governing removal proceedings in the immigration courts, which are administrative courts run by the Justice Department, not Article III federal courts. Under Section 1229a(b)(4)(A), aliens have the “privilege of being represented, at no expense to the government, by counsel of the alien’s choosing.” Thus, there is no question illegal aliens can be represented by lawyers in immigration removal proceedings, but it also is clear representation cannot be at the expense of the government. Holder’s press release cites no legal authority for this move other than a supposed “direction” from Congress to the Executive Office of Immigration Review “to better serve vulnerable populations such as children and improve court efficiency through pilot efforts aimed at improving legal representation.” Where this “direction” came from is not explained. In any event, any such “direction” from Congress cannot overcome a direct, statutory prohibition on providing legal representation at the expense of the government. More...