Unaccompanied and Unrepresented: The Challenges of Unaccompanied Child Migrants in Legal Proceedings
“It looks almost like you’re going into a pediatrician’s office. There are children lining the benches of the courtroom. Many of them … have no one to represent them.”
These were the words used by Katie Annand, managing attorney at Kids in Need of Defense (KIND), to describe an immigration court’s typical environment. Amid stuffed animals, toys, and coloring books, the immigration court in San Francisco resembled more of a day-care center than that of a court.
Each year, tens of thousands of unaccompanied child migrants (UACs) arrive in the United States. Of these tens of thousands, the overwhelming majority navigate the US immigration system alone, without legal representation in court.
Outrageously, children as young as 2-years-old have appeared before a judge in federal immigration court without representation. This expectation goes against all common sense and the foundational principle of fairness at the core of the constitutional right to due process. In more recent years, the number of unaccompanied migrant children arriving at the US-Mexico border has increased significantly.
In 2019, 76,020 unaccompanied child migrants were apprehended by immigration authorities as they crossed the US-Mexico border, a record high number and an increase of 52 percent from 2018. Of the more than seventy thousand children, 71 percent were deported. The most decisive factor in court decisions? Legal representation.
The Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008 establishes safeguards around the treatment and processing of UACs in agencies within the Department of Homeland Security (DHS). Among these standards is the requirement that the Department of Health and Human Services (HHS) assures, “to the greatest extent practicable,” that UACs have access to legal counsel. Despite this, the majority of UACs appear before their removal (deportation) hearings alone. Under US law, children arrested for entering the US illegally have no right to a court-appointed attorney as it is a civil procedure as opposed to a criminal one.
US Government data from the Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR) reveals that in 2014, only one-third of UACs were represented by an attorney. Almost three out of the four children, 73 percent who had representation, were allowed to stay. In stark contrast, just 15 percent of children who appeared in court without representation were allowed to stay. The decisive impact of legal representation on the outcomes of these cases is undeniable. Statistical evidence presented by the American Civil Liberties Union (ACLU) indicates that a child without an attorney has almost no chance of winning an asylum case. Representation is the deciding factor, and children who are represented by an attorney are five times more likely to win their cases.
Removal hearings determine these children’s futures; at a bare minimum, they ought to be granted the right to court-appointed counsel. The stakes of these case outcomes are incredibly high, as many of these children are fleeing dangerous situations of violence, poverty, and instability. Typical forms of immigration relief available to unaccompanied children in addition to asylum are special immigrant juvenile status (SIJ) for children who have experienced abuse, neglect, or abandonment in their home country, T visas for victims of trafficking, and U visas for victims of certain crimes in the US whose cooperation with investigators is vital to the prosecution of criminals.
In every case, DHS has a trained prosecutor to represent the US Government and advocate for the child’s deportation. Yet, children as young as two years old are expected to represent themselves. This expectation defies all common sense and is not in the slightest reasonable or fair. Immigration is a notoriously complex field of law, and the thought that children are somehow capable of defending their rights against a trained legal professional is absurd.
Not only are children expected to navigate the intricate legal labyrinth of immigration with no training, but they are also to do so with the added complexity of a language barrier, without guaranteed access to professional interpretation. Even in cases of asylum applicants when the circumstances are quite literally life and death — the government is not bound to provide a court-appointed attorney for these children. Government refusal to provide UACs the right to court-appointed counsel has sparked outrage amongst human rights activists and immigration advocacy groups alike, in some instances to the point where legal challenges have been brought forth to courts.
In 2014, the ACLU, and the American Immigration Council (AIC), among other advocacy organizations, sued the US government in a class-action lawsuit arguing for unaccompanied minors to be granted the right to counsel. The ACLU’s legal argument rested on the basis that the process of trying unaccompanied minors in removal proceedings without access to representation was unconstitutional because it violates the fifth amendment right to due process. CJ’s experience, a young accompanied child minor seeking asylum in the US, emphasizes this practice’s inescapable injustices.
An Illustrative Case: CJ’s Experience
“CJ,” an unaccompanied child migrant, was 13 years old when he left his home in Honduras. At a vulnerable age for recruitment, one of the Maras (gangs) pursued him. When he resisted recruitment, he was held at gunpoint and threatened his life if he refused to join the gang. Fearing for his life, CJ left for the United States in search of security as an asylum-seeker.
For CJ, like many others, the stakes could not be higher; going back is a matter of life and death. Even in his case’s seriousness, he is not provided the right to counsel to represent him during removal proceedings. In the 2014 case filed by the ACLU and AIC, the court held that it is not established under US law that “alien minors” are entitled to court-appointed counsel. Specifically to CJ, they claimed he had not shown a “necessity” for counsel to safeguard his due process right to a full and fair hearing.
The court found that CJ had a well-founded fear of persecution based on threats he received from the gang when he resisted their recruitment efforts. Even so, they rejected CJ’s asylum claim because he had not established that the threats had a “nexus” to a protected ground — that his suffering of persecution was based on his membership in a “particular social group” — that social group fitting the description of key new recruits gangs like Maras sought after, young adolescent males. CJ’s case possessed the core elements which would qualify him to be granted asylum, but he had failed to explain that gang members were motivated to kill him because of his “membership in a particular social group.” CJ did not know of, let alone understand, these abstract legal requirements, and per the result of that ACLU case, the court found that he had no right to a lawyer to help him navigate these complex legal requirements.
Since the decision of CJ’s case, a series of bills have been introduced in Congress to mandate appointments of counsel in deportation cases for unaccompanied children. In 2019, these eight bills ( still pending) included:
● Stop Cruelty to Migrant Children Act (SB 2113/HB 3918).
● Protecting Families and Improving Immigration Procedures Act (SB 1733).
● Reunite Every Unaccompanied Newborn Infant, Toddler and other children Expeditiously Act (HB 1012).
● Central America Reform and Enforcement Act (SB 1445).
● Funding Attorneys for Indigent Removal Proceedings Act (SB 2389/HB 4155).
● Northern Triangle and Border Stabilization Act (HB 3524).
● Immigrant Detainee Legal Rights Act (HB 1045).
● Protecting the Rights of Families and Immigrants Who Legally Entered From Detention Act (SB 2396)
The court’s recognition that CJ met the conditions to receive legal protection (a well-founded fear, recruitment by gang due to age and sex) yet refusal to grant asylum status underscores the grave failure of justice in the government’s refusal to provide legal representation to unaccompanied child migrants — stressing the necessity of counsel in safeguarding the due process right to a full and fair hearing. Legislators and advocates alike must be moved to action — it is high time that unaccompanied child migrants are granted representation they are merited.
Danielle Bertaux, Jenni Gargano, Amal Rass, and Kara Sparling are graduate students at The Fletcher School of Law and Diplomacy in Medford, Massachusetts. This blog was developed for Professor Katrina Burgess’ Migration and Transnationalism in Latin America course conducted in Fall 2020.
