The thousands of children fleeing violence and persecution and seeking refuge in the United States have brought to the forefront the issue of how our immigration system deals with children. The current system subjects kids to the same deportation laws as adults. They are ordered to appear in immigration court, where they face off against a prosecutor, and a judge calls upon them to mount their own defense against deportation. And, just like adults facing deportation, children are not provided government-appointed counsel to represent them in court. As a result, each year, thousands of children are forced to navigate the immigration court process alone.
But today, eight children, ranging in ages from 10 to 17 years old, took a brave step toward ending this disgraceful situation. The American Immigration Council, American Civil Liberties Union, Northwest Immigrant Rights Project, Public Counsel, and K&L Gates LLP filed a nationwide class-action lawsuit on behalf of thousands of children who are challenging the federal government’s failure to provide them with legal representation as it carries out deportation hearings against them.
In the complaint, they state that the Government’s failure to provide legal representation to children deprives them of a fair hearing and violates both the U.S. Constitution and the immigration laws. The children ask the court to order the Government to fix this long-standing, glaring defect in the immigration system by requiring the appointment of legal representation for all unrepresented children facing deportation.
Under the immigration laws, everyone facing deportation in court has the “privilege” of being represented “at no expense to the Government.” This means that generally only those children who have family members who can afford a private lawyer or those who are able to find pro bono counsel to represent them free-of-charge are represented. And, although a vast network of pro bono legal service providers has responded to the calls for assistance, and the Obama administration has recently announced an initiative to provide legal assistance to some children, these efforts are simply unable to meet the overwhelming need. Likewise, there is no guarantee that the additional funding that the administration proposed on Tuesday will materialize or meet the current demand for legal representation for children.
Without lawyers, children face the daunting and often insurmountable task of navigating a complicated set of procedural rules, immigration statutes, regulations, and court decisions. The immigration laws put the burden on the individuals facing deportation to prove that they qualify for international protection (such as asylum) or otherwise qualify to remain in the United States. That means, for example, that a child who fled persecution in her home country first has to identify that she is eligible for asylum; she then must investigate her claim, collect significant amounts of evidence—evidence that may be abroad—and present legal arguments as to why she satisfies the complex standards for asylum. And if she is unable to do this, she may be deported.
Given the grave consequences of deportation—which can range from permanent separation from a home or family in the United States to being returned to a country where the child fears for his/her life—legal representation is crucial to ensuring that all children are afforded a fair process and a meaningful opportunity to be heard. Legal representation also ensures that immigration courts hear children’s cases more efficiently, without unnecessary delay caused by children’s confusion about the process or by their (often futile) attempts to find representation. Let’s hope that soon the federal court presiding over the children’s lawsuit will recognize what so many people already know: no child should be deported without legal representation.