By Benny Grush
Children facing juvenile delinquency charges in this country have been entitled to a court appointed lawyer since 1967, when the Supreme Court ruled that such legal assistance was necessary to preserve the minor’s due process rights.
The court ruled that children require legal counsel in delinquency courts even though juvenile cases are civil proceedings.
But refugee children, many of them fleeing horrific violence in their home countries, are on their own when they go into immigration court where they will face a trained prosecutor whose objective is to deport them.
Each year, the government initiates immigration court proceedings against thousands of children. Some of these youth grew up in the United States and have lived in the country for years, and many others have fled violence and persecution in their home countries.
The national ACLU, the ACLU Foundation of Southern California and other civil rights groups filed suit in 2014, challenging the federal government for failing to provide legal representation for children facing deportation hearings.
The Obama administration recently called the influx of children coming across the Southern border a “humanitarian situation.” And yet, thousands of children required to appear in immigration court each year do so without an attorney.
“If we believe in due process for children in our country, then we cannot abandon them when they face deportation in our immigration courts,” said Ahilan Arulanantham, senior staff attorney with the ACLU’s Immigrants’ Rights Project and the ACLU Foundation of Southern California. “The government pays for a trained prosecutor to advocate for the deportation of every child. It is patently unfair to force children to defend themselves alone.”
The complaint charges the U.S. Department of Justice, Department of Homeland Security, U.S. Immigration and Customs Enforcement, Department of Health and Human Services, Executive Office for Immigration Review, Office of Refugee Resettlement, and U.S. Citizenship and Immigration Services with violating the U.S. Constitution’s Fifth Amendment Due Process Clause and the Immigration and Nationality Act’s provisions requiring a “full and fair hearing” before an immigration judge. It seeks to require the government to provide children with legal representation in their deportation hearings.
Meanwhile, the unfairness continues. Some critics argue that children, many of whom have fled traumatic violence in Central America, are not legally entitled to an attorney. Those arguments refuse to extend to these refugee children the rights the Supreme Court extended to minors facing charges in juvenile courts.
U.S. civil courts also give children the right to a lawyer in other proceedings such as juvenile dependency cases, child custody litigations and child visitation disputes. Despite these instances where court appointed attorneys work on behalf of minors, children -- even unaccompanied infants and toddlers -- are not provided this right in immigration courts.
These young children must represent themselves in proceedings some observers argue are second in complexity only to the Internal Revenue Code. That children would be expected to represent themselves in immigration proceedings flies in the face of all logic and is an affront to Americans’ basic sense of fairness.
In the juvenile delinquency case, the Supreme Court acknowledged the major impact legal representation had on defending the rights of a minor to a fair and just trial. Surely, the same is true in the immigration courts, where children unfamiliar with our legal system face off against a trained prosecutor who argues for their deportation. It should be obvious that such children know little if anything of complex immigration law and would also benefit tremendously from having legal representation.
The playing field does not get more uneven than this. And chances of making it more equal are virtually non-existent without appointed lawyers for undocumented immigrant children.
Benny Grush is communications intern at the ACLU of Southern California.