Susan L. Pollet ()
“Migrants and refugees are not pawns on the chessboard of humanity. They are children, women, and men who leave or are forced to leave their homes for various reasons, who share a legitimate desire for knowing and having, but above all for being more.”
- Pope Francis
Many minors,1 seeking refuge from countries “rife with violence and abject poverty,” arrive in the United States despite the risks of border crossing and the probability of apprehension and removal. Often, they are willing to risk the potentially fatal journey because the other option is certain death. What many do not realize is that nearly half of the unaccompanied immigrant children (UIC) who make it to the United States are unrepresented by counsel at any point in removal proceedings.2
Children Deserve Representation
Notably, “[s]uspected killers, kidnappers and others facing federal felony charges, no matter their ages, are entitled to court-appointed lawyers if they cannot afford them. But children accused of violating immigration laws, a civil offense, do not have the same right.”3 This is so even though Department of Homeland Security attorneys represent the government. The U.S. Supreme Court has long recognized that children “require significant legal guidance because of their inherent vulnerabilities,” and immigration court should be no exception.4 Moreover, the Due Process Clause of the Fifth Amendment of the U.S. Constitution provides a constitutional basis for the right to appointed counsel regardless of the civil nature of the immigration proceedings.5 The government should recognize such rights and provide counsel to unaccompanied immigrant children.
Interestingly, the majority of children do attend their immigration proceedings despite many obstacles. Some of these obstacles include the following: that the children have experienced horrendous trauma (e.g., physical and sexual abuse, exposure to violence, gang activity, drug trafficking, and corruption); language and cultural barriers; a lack of understanding of complex processes; their own cognitive development, which is in its early stages; and their dependence on adults for transportation. Moreover, the attendance rate for those represented by lawyers is even higher—95 percent.6 As is to be expected, it is clear that having a lawyer does make a difference for these children. Statistics gathered between October 2004 and June 2016 indicated that only one in 10 children who had legal representation were deported, while more than half the children who did not have lawyers were deported.7 This is so because without government-appointed attorneys to help the children navigate the complexities of the immigration system, they cannot present a sufficient defense to removal or a successful asylum petition, and therefore are denied the full and fair hearing due process requires.8 These children are unusually vulnerable in that they are often too scared to speak about their trauma without a trusted advocate. Because their trauma is usually the basis for their substantive relief, when they cannot communicate their experiences, they cannot convey their eligibility for such relief.9 Even with the efforts of immigration advocacy groups and pro bono lawyers, there is not enough assistance to fill the gap, and children are being deported back to places where they are likely to be injured or killed.
While the government points to the cost of providing counsel to children in these cases, the opposing argument proposed by advocates is that children have a statutory right to a reasonable opportunity to present their cases and a constitutional right to due process.10 It is further argued that if the government can spend money to hire a trained prosecutor to appear against the child in every case, how can the government then claim that it is too expensive to level the playing field.11 Advocates further maintain that at the very least, the Justice Department should prioritize its deportation cases by moving those children who are represented to the front of the line, to give time to those unrepresented minors to seek out a pro bono attorney or funds for representation.12
One study showed that the cost of providing such procedural protections are likely overstated, as the program would effectively pay for itself with “a substantial reduction of government expenditures for transportation, detention, and removal of aliens.”13 Children without representation place a huge burden on the immigration-court system, causing massive delays and costing taxpayer money. Children who appear without a lawyer are “often granted stays, are slow to present a cohesive case, and are less likely to agree to a voluntary departure. The process is inefficient, and court backlogs pile up. As the number of pending cases grows, judges become overburdened and more judges need to be hired. Meanwhile, immigrants sit in detention at a high cost to both citizen taxpayers and immigrants.”14 Thus, failing to provide attorneys to children is not only unjust and legally problematic, it is also costly. Mandatory counsel for each child would help to alleviate that burden, ideally, with federal funding supplemented by pro bono work and community funding and support.
Best Interests of the Child
Thus, a major hurdle for children impacted by immigration proceedings is access to representation, either of their legal interests, as set forth above, or of their best interests. Only a small portion of unaccompanied migrant children who are victims of trafficking do have legal representation through legislation.15 Moreover, currently, U.S. immigration law does not recognize children’s interests as a valid factor in immigration decisions.16 Scholars and policy-makers have been struggling to figure out how to incorporate the “best interests of the child” standard in the U.S. immigration law context. Scholars point out that the “best interests of the child” standard pervades international and domestic U.S. family law, and that one study showed that the standard had been used in almost 20,000 United States court decisions, both state and federal.17
Internationally, the “best interests” standards are guided by the UN Convention on the Rights of the Child (which the United States has signed, but not ratified), the UN Committee on the Rights of the Child, and by other UN bodies like the UN High Commission on Refugees.
Under U.S. law, no standard definition of “best interests” exists, and in United States immigration law, the “best interests” standard is “neither explicitly acknowledged nor binding.”18 In the United States, the best interests standard is used primarily in the context of family law, such as in child custody, or child abuse and neglect cases, or in the context of termination of parental rights where there is intrafamilial violence. While there is no one legal standard defining “best interests of the child,” the priorities of such an approach have been identified as allowing a child to have a voice, and, substantively, prioritizing the child’s safety, permanency, and well-being.19 Other nations, including the United Kingdom, Norway, Canada, and Australia have incorporated some version of the “best interests of the child” standard in their immigration removal processes.20
One suggestion is that a four-part best interest test be used in immigration decisions based on research on brain development, risk and resilience, and on existing legal guidelines for best interests determinations, as follows: (1) the presence of caregivers and supportive networks; (2) the destination’s socio-economic context; (3) the child’s personality; and (4) the presence of cumulative risk factors, especially those spanning “multiple contexts.”21 It has been suggested that these tests be used “whether the child is the primary or ancillary party to an immigration proceeding, or whether the child will simply be fundamentally impacted by the decision.”22
Scholars have argued that in a situation as “life-changing” as removal from home and family, and where the state is “taking affirmative action that can seriously harm the development of a child,” the court should be obligated to consider the “best interests of the child” in making its decision, and that the state should consider “its own interests in children’s healthy development, particularly children that will remain in the state as legal members of society.”23 These decisions may well determine the well-being of the child for the entirety of his or her life. Moreover, it is maintained that the “consideration of a child’s ‘best interests’ should not be limited to children who affirmatively or defensively end up in immigration court as the primary party to a case, but it should also apply to all affected children, including undocumented children brought here by their parents and United States citizen children and legal permanent resident children whose undocumented parents face deportation.”24
In terms of the implementation of “best interests” standards, two solutions have been proposed. One is to establish an independent board composed of experts in child welfare to make the determination, who could sit in the immigration court with asylum officers and immigration judges and perform evaluations in a non-adversarial setting. The second solution is to either appoint dual-system judges in both family and immigration court or to hire a specified number of child-expert immigration judges.25
Another suggestion is that in the context of the immigration removal process, specialized roles for attorneys, social workers, and other qualified individuals be created to serve as an extension of the court to report on the child’s “unique circumstances, familial, cultural, circumstantial and historical elements” for more thorough consideration.26 This would be helpful to the courts to make “best interests” determinations.
Until children in immigration court receive appointed counsel, and until the immigration court considers the “best interests of the child” in its determinations, these children will continue to suffer at the hands of a system which rations justice, to the detriment of these children, their families, and society as a whole.
1. While a child in the immigration context is usually considered to be under 21 years of age, sometimes the age drops to 18 years or younger, depending on the child’s circumstances or immigration status. See Becky Wolozin, “Doing What’s Best: Determining Best Interests for Children Impacted by Immigration Proceedings,” 64 Drake L. Rev. 141, 150-51 (First Quarter 2016).
2. Wesley C. Brockway, “Rationing Justice: The Need for Appointed Counsel in Removal Proceedings of Unaccompanied Immigrant Children,” 88 U. Colo. L. Rev. 179, 180-81 (Winter 2017).
3. Fernanda Santos, “It’s Children Against Federal Lawyers in Immigration Court,” NYTimes.com (Aug. 20, 2016).
4. In re Gault, 387 US 1, 36, 41 (1967).
5. McKayla M. Smith, “Scared, But No Longer Alone: Using Louisiana to Build a Nationwide System of Representation for Unaccompanied Children,” 63 Loy. L. Rev. 111, 134 (2017).
8. Brockway, supra note 2, at 195.
9. McKayla M. Smith, “Scared, But no Longer Alone: Using Louisiana to Build a Nationwide System of Representation for Unaccompanied Children,” 63 Loy. L. Rev. 111, 125 (2017).
10. Id. at 115-16.
11. Hector Villagra, “Op-Ed-The Injustice of Deporting Children Without Representation,” www.latimes.com (March 17, 2016).
13. Brockway, supra note 2, at 228-29.
14. Smith, supra note 9, at 151.
15. Wolozin, supra note 1, at 165; see 22 U.S.C. §7105(b)(1)(F) (2012); 8 U.S.C. §1232(c)(5).
16. The consideration of a child’s interests is available in the context of Special Immigrant Juvenile Status (SIJS) which takes the best interests of the child into consideration through the family court system. This is a limited and narrow class of immigration cases impacting children. It is a hybrid legal tool which provides, for example, visas for children aged 21 and under who have been abused, abandoned, or neglected by one or both parents and for whom repatriation is not in their best interests (Wolozin, supra note 1, at 166). It is a two step process; obtaining juvenile court findings at the state level, and filing forms with the U.S. Citizenship and Immigration Services at the federal level, with the steps occurring consecutively.
17. Wolozin, supra note 1, at 144.
19. Id. at 153.
20. Timothy P. Fadgen, Dana E. Prescott, “Do the Best Interests of the Child End at the Nation’s Shores? Immigration, State Courts, and Children in the United States,” 28 J. Am. Acad. Matrim. Law 359, 378-81 (2016).
21. Wolozin, supra note 1, at 179-83.
22. Id. at 185.
23. Wolozin, supra note 1, at 172.
24. Id. at 185-86.
25. Id. at 187.
26. Fadgen and Prescott, supra note 20, at 389.