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William Mitchell College of Law UNACCOMPANIED ALIEN CHILDREN AT THE U.S. BORDER AND THE RIGHT
TO COUNSEL AT THE EXPENSE OF THE GOVERNMENT
Student: Eduardo I. Aburto
Immigration Law: Immigration and Citizenship Law Survey
Professor: Malinda M. Schmiechen
April 23, 2015
1
I. INTRODUCTION ................................................................................................................. 2
II. HISTORY ............................................................................................................................... 3
A. Sixth Amendment: Right to Counsel on Criminal Cases. ............................................. 3
B. Right to Counsel on Civil Cases. ........................................................................................... 6
C. Fifth Amendment: Procedural Due Process and Immigration. ................................. 8
D. Child Immigration: Pro Se and Pro Bono Representation. ..................................... 12
III. CURRENT STATUS .......................................................................................................... 15
A. Children at the Border ........................................................................................................ 15
1. Arriving Aliens .................................................................................................................................... 15
2. Procedure .............................................................................................................................................. 17
B. Treatment of Children in the INA .................................................................................... 20
C. Why Right to Counsel Does not Extend to Immigration Court? ............................. 23
IV. PROPOSALS ...................................................................................................................... 25
2
I. INTRODUCTION
It is not surprising that people from other countries are constantly trying to become
part of our great nation. They would do whatever it takes to have a chance to build their
lives in a land where life, liberty, and pursue of happiness are inalienable rights. Most of
the children that cross the border, risking their lives to have this chance, do not even have
a fair opportunity to tell us why they should stay. Alone and unrepresented,
unaccompanied alien children have to endure a journey through our immigration system
that most likely will scar them for life. Before sending them back, we should give these
children a fair opportunity to present their claims through the effective assistance of
counsel.
The number of unaccompanied alien children apprehended at the Southwest border of
the United States has reached alarming numbers, presenting a great challenge to the
immigration system to handle these cases.1 Members of Congress have characterized the
issue as a humanitarian crisis.2 Overwhelmingly, children are coming from El Salvador,
Guatemala, Honduras, and Mexico. 3 Unaccompanied alien children are especially
vulnerable to human trafficking, exploitation, and abuse because of their tender age, their
separation from parents and relatives, and the hazardous journey they take.4 There are
multiple, inter-related reasons that unaccompanied alien children have for undertaking
the difficult journey of traveling to the United States.5 These reasons may include
economic opportunities, escaping violent communities or abusive family relationships in
1 LISA SEGHETTI ET AL., CONG. RESEARCH SERV., R43599, UNACCOMPANIED ALIEN CHILDREN: AN OVERVIEW 1 (2014). 2 Id. 3 Id. 4 Unaccompanied Children's Services, Office of Refugee Resettlement, http://www.acf.hhs.gov/programs/orr/programs/ucs/about
(last visited Mar. 11, 2015). 5 Id.
3
their home country, rejoining family already in the United States, or finding work to
support their families in the home country.6
The purpose of this paper is to understand whether these children possess a right to
counsel appointed by the Government under the Constitution of the United States. For
this purpose, it is important to understand the roots of the right to counsel at the expense
of the government on criminal cases. This paper also explores the efforts that the
Government and Non-profits institutions are undertaken in order to palliate the pervasive
effects of these massive migrations. Finally, it presents plausible recommendations to
approach this humanitarian crisis within the clear goal to perfect the particularly complex
immigration system for the benefit of the whole region.
II. HISTORY
A. Sixth Amendment: Right to Counsel on Criminal Cases.
The Sixth Amendment’s right to counsel has its foundation in English jurisprudence.7
The right to receive counsel from an attorney in a criminal case first appeared in England
during the twelfth century.8 The colonies in America adopted English law and common
law practices. As in England, the early colonists’ “key protection from government
arbitrariness and oppression was not the right to counsel but the right to trial.”9
Eventually, the colonists began to recognize the importance of the right to counsel.10 One
6 Id. 7 David L. Wilson, Note, Constitutional Law: Making A Case for Preserving the Integrity of Minnesota's Public Defender System:
Kennedy v. Carlson, 544 N.W.2d 1 (Minn. 1996), 22 WM. MITCHELL L. REV. 1117, 1121 (1996) (citing Alfredo Garcia, The Sixth Amendment in Modern American Jurisprudence: A Critical Perspective 3 (1992)).
8 Id. (citing Robert A. Rutland, The Birth of the Bill of Rights 1776-1791, at 5-6 (1991)). 9 Id. at 1122 (citing William F. McDonald, In Defense of Inequality: The Legal Profession and Criminal Defense, in The Defense
Counsel 21 (1983)). 10 Id.
4
reason was the use of “the inquisitorial institution of the public prosecutor”.11 It began to
be more difficult for laypersons to represent themselves because prosecutors became
more experienced with criminal procedures.12 Also, once the colonies discarded English
common law, unique legal codes and courts started to develop.13 Hence, laypersons
started to seek counsel from those who were familiar with the quickly developing law.14
In some colonies, provisions were made for the right to counsel.15 After the American
Revolution, most of the new states enacted some sort of statute or state constitutional
provision.16 Therefore, the assistance of an attorney became essential to counter the
prosecutor’s abilities and to design the legal system.17
Many states, when the Federal Constitutions was being draft, had guaranteed several
criminal procedural rights in their own constitutions.18 However, the Federal Constitution
did not include these procedural protections found in state constitutions.19 In order to
encourage the adoption of the Federal Constitution by the states, the Framers added the
Bill of Rights, which includes the Sixth Amendment.20 Furthermore, at the time the Sixth
Amendment was enacted, the right to counsel only meant that an accused person could
retain the services of an attorney at his or her own expenses. The Sixth Amendment does
not mention how the poor would be able to secure counsel.21 It was only until the
11 Id. (citing Alfredo Garcia, The Sixth Amendment in Modern American Jurisprudence: A Critical Perspective 4 (1992)). 12 Id. 13 Id. at 1122-23 (citing 1 Anton-Hermann Chroust, The Rise of the Legal Profession in America: The Colonial Experience 56-57
(1965)). 14 Id. at 1123 (citing 1 Anton-Hermann Chroust, The Rise of the Legal Profession in America: The Colonial Experience 56-57
(1965)). 15 Id. (citing William F. McDonald, In Defense of Inequality: The Legal Profession and Criminal Defense, in The Defense Counsel 23
(1983)). 16 Id. (citing William F. McDonald, In Defense of Inequality: The Legal Profession and Criminal Defense, in The Defense Counsel 24
(1983)). 17 Id. 18 Id. (citing Francis H. Heller, The Sixth Amendment to the Constitution to the United States 21-22 (1969)). 19 Id. (citing Alfredo Garcia, The Sixth Amendment in Modern American Jurisprudence: A Critical Perspective 4 (1992)). 20 Id. (citing Eugene W. Hickok Jr., The Bill of Rights 366 (1991)). 21 Id. (citing Francis H. Heller, The Sixth Amendment to the Constitution to the United States 110 (1969)).
5
Twentieth Century that the right to counsel extended to the poor through the Sixth
Amendment.22
In Powell v. Alabama, the Supreme Court held that it was “the duty of the trial judge,
where the accused is unable to employ counsel, to appoint counsel for him.”23 “[T]he
failure of the trial court to make an effective appointment of counsel was likewise a
denial of due process within the meaning of the Fourteenth Amendment.”24 Ten years
later, in Betts v. Brady, the Court refused to extend the concept of due process in the
Fourteen Amendment to the states.25 The Court said that “[t]o deduce from the due
process clause a rule binding upon the states in this matter would be to impose upon them
. . . a requirement without distinction between criminal charges of different magnitude or
in respect of courts of varying jurisdiction.”26 However, the Court’s decision in Betts was
overruled twenty-one years later. In Gideon v. Wainwright, the Court pointed out that
“[n]ot only these precedents but also reason and reflection require us to recognize that in
our adversary system of criminal justice, any person [required to appear in] court, who is
too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for
him.”27 The Court went further to say that “[t]his seems to us to be an obvious truth.
Governments, both state and federal, quite properly spend vast sums of money to
establish machinery to try defendants accused of crime.”28
Finally, in subsequent cases, the Court established the parameters when counsel
should be made available to defendant.29 In Douglas v. People of State of California,30
22 Id. (citing Eugene W. Hickok Jr., The Bill of Rights 367 (1991)). 23 287 U.S. 45, 73 (1932). 24 Id. at 71. 25 Wilson, supra note 7, at 1126. 26 316 U.S. 455, 473 (1942). 27 372 U.S. 335, 344 (1963). 28 Id. 29 Wilson, supra note 7, at 1127. 30 372 U.S. 353 (1963).
6
the Court held that a criminal defendant has the right to the assistance of counsel for his
or her first appeal.31 In In Re Gault,32 the Court held that juveniles have the right to
appointed counsel when they are subject to deprivation of their liberty for acts that would
constitute a crime if committed by an adult.33 Finally, in Argersinger v. Hamlin, the Court
held “that absent a knowing and intelligent waiver, no person may be imprisoned for any
offense, whether classified as petty, misdemeanor, or felony, unless he was represented
by counsel at his trial.34
B. Right to Counsel on Civil Cases.
The Supreme Court has not interpreted the Constitution to guarantee a “civil right
to counsel” in cases where physical liberty is not at stake.35 In Lassiter v. Department of
Social Services of Durham County, N.C., a case from 1981, the Court held that the
Constitution does not require the appointment of counsel for indigent parents in every
parental status termination proceeding. 36 Regarding the meaning of “fundamental
fairness” requirement of the Due Process Clause concerning the right to appointed
counsel, the Court said that there is a “presumption that an indigent litigant has a right to
appointed counsel only when, if he loses, he may be deprived of his physical liberty.”37
Some right to counsel statutes are in place to provide appointed counsel for juveniles
who are subject to custody proceedings, such as abuse and neglect, dependency, or
31 Wilson, supra note 7, at 1127. 32 387 U.S. 1 (1967). 33 Id. 34 407 U.S. 25, 37 (1972). 35 Sarah Dina Moore Alba, Commentary, Searching for the "Civil Gideon": Procedural Due Process and the Juvenile Right to
Counsel in Termination Proceedings, 13 U. PA. J. CONST. L. 1079 (2011). 36 452 U.S. 18, 31-32 (1981) 37 Id. at 26-27.
7
termination proceedings.38 This is in part because the Child Abuse Prevention and
Treatment Act (“CAPTA”) requires that states, receiving federal funds under CAPTA,
appoint a representative for juveniles involved in abuse or neglect proceedings.39 All
states require some type of representation for children in termination proceedings.40 Some
states mandate the appointment of a lawyer for juveniles in termination proceedings.41
Child advocates in the Unites States agree that the rights recognized in In re Gault, which
established a child’s constitutional right to counsel in criminal cases, can and should
extend beyond juvenile delinquency cases to include juvenile dependency proceedings.42
Regarding alleged incompetent or insane persons, it has been generally recognized
that in a proceeding to have a person adjudge incompetent or insane, the person is entitled
to be represented either by private counsel or by counsel appointed by the court.43 In
removal proceedings, the Board of Immigration Appeals (“BIA”) provided some
framework for addressing the question of competency.44 In Matter of M-A-M-, the BIA
addressed when an immigration judge should make a competency determination, what
factors a judge should consider and what procedures to follow to reach that
determination, and the types of “safeguards” that may be prescribed when the respondent
is found incompetent.45 The BIA found “that an alien is presumed to be competent to
participate in removal proceedings.”46 “Absent indicia of mental incompetency, an
Immigration Judge is under no obligation to analyze an alien's competency.”47 Indicia of
38 Moore, supra note 35, at 1103. 39 Id. at 1103-04. 40 Id. at 1104. 41 Id. 42 AMY HARFELD ET AL., A CHILD RIGHT’S TO COUNSEL: A NATIONAL REPORT CARD ON LEGAL REPRESENTATION FOR ABUSED &
NEGLECTED CHILDREN 7 (2009). 43 H.H. Henry, Right to Counsel in Insanity or Incompetency Adjudication Proceedings, 87 A.L.R.2D 950 (1963). 44 Fatma E. Marouf, Incompetent but Deportable: The Case for A Right to Mental Competence in Removal Proceedings, 65
HASTINGS L.J. 929, 961 (2014). 45 25 I. & N. Dec. 474, 476 (BIA 2011). 46 Id. at 477. 47 Id.
8
incompetency include certain behaviors, such as the inability to understand and respond
to questions, the inability to stay on topic, or high level of distraction.48 Also, the record
may contain evidence of mental illness or incompetency.49
The BIA established that “[w]hen there are indicia of incompetency, an Immigration
Judge must take measures to determine whether a respondent is competent to participate
in proceedings.”50 If the person is found incompetent, then the result is not termination of
the removal proceeding, but that the judge should employ certain “safeguards”. 51
Although, the BIA provided certain examples of these safeguards, the appointment of
counsel is not included in the list.
C. Fifth Amendment: Procedural Due Process and Immigration.
The history of due process in immigration proceeding goes back to 1903. In
Yamataya v. Fisher, the Supreme Court established that it was not competent for any
executive officer to arbitrarily cause an alien, who has allegedly entered the country
illegally, “to be taken into custody and deported without giving him all opportunity to be
heard upon the questions involving his right to be and remain in the United States. No
such arbitrary power can exist where the principles involved in due process of law are
recognized.”52 However, this right to be heard did not extend to aliens seeking admission
to the United States.53 In United States ex rel. Knauff v. Shaughnessy, a case from 1950,
the Court stated that “an alien who seeks admission to this country may not do so under
48 Id. at 479. 49 Id. 50 Id. at 480. 51 Marouf, supra note 44, at 963-64. 52 189 U.S. 86, 101 (1903). 53 Bradley J. Wyatt, Note, Even Aliens are Entitled to Due Process: Extending Mathews v. Eldridge Balancing to Board of
Immigration Appeals Procedural Reform, 12 WM. & MARY BILL RTS. J. 605, 611 (2004) (explaining the differences in due process protections between deportable and excludable aliens).
9
any claim of right. Admission of aliens to the United States is a privilege granted by the
sovereign United States Government.”54 Until the Immigration and Nationality Act (INA)
of 1996, the due process rights of aliens at the border might be summarized in the
sentence written by Judge Minton: “Whatever the procedure authorized by Congress is, it
is due process as far as an alien denied entry is concerned.”55
Three years later, in Mezei, the Court affirmed Knauff emphasizing that “it is not
within the province of any court, unless expressly authorized by law, to review the
determination of the political branch of the Government.”56 The same year, in Kwong Hai
Chew v. Colding, the Court established “that a resident alien returning from a brief trip
has a right to due process just as would a continuously present resident alien.”57
The Supreme Court decided in 1963 Rosenberg v. Fleuti.58 Here, it held that an
innocent, casual, and brief excursion by a resident alien outside the borders of the United
States does not disrupt his resident alien status.59 The Court found that a noncitizen was
not making an entry when returning from a temporary absence that was not meaningfully
interruptive of permanent residence.60 In 1959 the INS tried to exclude George Fleuti, a
citizen of Switzerland, as an excludable alien by the law existing at the time of entry.61
The Court included an exception to the statute for innocent, casual, and brief trips.62
In 1970 the Supreme Court initiated a major reconceptualization of due process
analysis in civil cases.63 In Goldberg v. Kelly,64 the Court established a two-step analysis
54 338 U.S. 537, 542 (1950). 55 THOMAS ALEXANDER ALEINIKOFF ET AL., IMMIGRATION AND CITIZENSHIP: PROCESS AND POLICY 531 (7th ed. 2012) (citing United
States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950). 56 Wyatt, supra note 53, at 611 (citing Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953). 57 Landon v. Plasencia, 459 U.S. 21, 31 (1982). 58 374 U.S. 449 (1963). 59 Id. 60 Aleinikoff, supra note 55, at 560. 61 Id. 62 Id. at 561. 63 Id. 64 397 U.S. 254 (1970).
10
for procedural due process claims. The Court would first ask whether a claimant
possesses a liberty or property interest under the Fifth Amendment’s Due Process
Clause.65 The second step is to decide on a case-by-case basis exactly what procedural
protections due process requires.66
In Board of Regents v. Roth,67 the Court established that the Due Process Clause
protects only against deprivations of life, liberty, or property, and not all government
actions negatively affecting individuals deprive them of such interests.68 The Court
explained that liberty denotes not merely freedom from bodily restraint, but also the right
of the individual to contract, to engage in any common occupation of life, to marry, etc.
Generally, liberty denotes the right to enjoy those privileges long recognized as essential
to the orderly pursuit of happiness by free men.69
In 1982 the Supreme Court decided Landon v. Plasencia.70 The Court established that
“once an alien gains admission to our country and begins to develop the ties that go with
permanent residence his constitutional status changes accordingly. Our cases have
frequently suggested that a continuously present resident alien is entitled to a fair hearing
when threatened with deportation.”71 It also held that the test laid out in Matthew v.
Eldridge applied to evaluating the procedures used to exclude a returning permanent
resident.72 This opened the door for due process balancing analysis.73 The Court set the
Mathews v. Eldridge test as follow:
65 Aleinikoff, supra note 55, at 562. 66 Id. 67 408 U.S. 564. 68 Aleinikoff, supra note 55, at 562. 69 Id. 70 This case was remanded to the Court of Appeals but the government did not pursue the case after the remand, presumably, because
of the pro-immigrant due process law that the courts might have created if they addressed her due process claims. See THOMAS ALEXANDER ALEINIKOFF ET AL., IMMIGRATION AND CITIZENSHIP: PROCESS AND POLICY 560 (7th ed. 2012).
71 Landon v. Plasencia, 459 U.S. 21, 32 (1982). 72 Gerald L. Neuman, Discretionary Deportation, 20 GEO. IMMIGR. L.J. 611, 635 (2006) (citing Landon v. Plasencia, 459 U.S. 21, 34
(1982)). 73 Wyatt, supra note 53, at 616.
11
In evaluating the procedures in any case, the courts must consider the interest at stake for the individual, the risk of an erroneous deprivation of the interest through the procedures used as well as the probable value of additional or different procedural safeguards, and the interest of the government in using the current procedures rather than additional or different procedures.74
The Court also said that “[if] the exclusion hearing is to ensure fairness, it must
provide Plasencia an opportunity to present her case effectively, though at the same time
it cannot impose an undue burden on the government.”75 Regarding to aliens seeking
initial admission, the Court maintained its past holdings. The Court said that “an alien
seeking initial admission to the United States requests a privilege and has no
constitutional rights regarding his application, for the power to admit or exclude aliens is
a sovereign prerogative.”76 When the Court decided Plasencia, the Fleuti exception was
the current law.77 The Court, however, held that Plasencia was entitled to procedural due
process protection as a returning permanent resident, even if her trip to Mexico fell
outside the Fleuti exception.78
Until 1996, an alien already in the United States was subject to a deportation
proceeding, and an alien outside the United States seeking admission was subject to an
exclusion hearing.79 Aliens physically present in the United States were entitled to the
heightened due process protection of a deportation proceeding, irrespective of whether
they entered the United States legally. As a result, aliens who successfully entered the
United States illegally were entitled to greater due process protection than aliens who
were seeking to enter the U.S. legally.80 The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA) amended the Immigration and Nationality Act. 74 Id. (citing Landon v. Plasencia, 459 U.S. 21, 34 (1982)). 75 Plasencia, 459 U.S. at 36. 76 Id. at 32. 77 Aleinikoff, supra note 55, at 561. 78 Id. 79 Wyatt, supra note 53, at 611 (citing Landon v. Plasencia, 459 U.S. 21, 25 (1982)). 80 Id. at 611 n.45.
12
IIRIRA subjected deportable and inadmissible aliens to a single removal proceeding
under 8 U.S.C. § 1229a.81 IIRIRA also shifted the structure so that the most important
statutory line is now admission rather than entry.82 Under the Act, the admissibility
grounds apply to noncitizens who have not been admitted, but the deportability grounds
apply only after admission.83 Also, under 8 U.S.C. § 1229a(b)(4), aliens charged with
deportation or exclusion are provided the right to counsel at no expense to the
government, the right to examine the evidence presented against them, and the right to
have a record made of the proceedings.84
Under INA section 235(b)(1), expedited removal proceedings may be applied to
two categories of aliens.85 The first category allows expedited removal proceedings for
aliens who are arriving in the Unites States.86 The second category includes those aliens
designated by the Attorney General whom the expedited removal proceeding may be
applied, even if they are not arriving in the United States.87 These may be aliens who
have not been admitted or paroled into the United States and who have not been
physically present continuously in the United States for the two-year period prior to a
determination of inadmissibility by an immigration officer.88
D. Child Immigration: Pro Se and Pro Bono Representation.
The Code of Federal Regulations lists the persons who may represent unrepresented
children in immigration proceedings.89 As a practical matter, there are four categories of
81 Id. at 615. 82 Aleinikoff, supra note 55, at 554. 83 Id. 84 Wyatt, supra note 53, at 615. 85 INS Inspector Field Manual, Chapter 17.15 I(a) (Apr 19, 2007). 86 Id. 87 Id. 88 Id. 89 See 8 C.F.R. § 1292.1 (2015).
13
people who may present cases in Immigration Court: unrepresented aliens, attorneys,
accredited representatives, and certain categories of persons who are expressly
recognized by the Immigration Court.90 An unaccompanied alien child in proceedings
may represent himself or herself before the Immigration Court.91 Immigration Courts
shall provide unaccompanied children in immigration proceedings with a list of free or
low cost legal service providers within the region in which the Immigration Court is
located.92 Unfortunately, free or low cost service providers may not be able to represent
every individual who request assistance.93
Alien detainees who face immigration proceedings with representation are six times
more likely to prevail than those who are unrepresented in proceedings before both the
immigration courts and the BIA.94 In 1999, the BIA created the BIA Pro Bono Project.95
The purpose of this project was to increase the level of pro bono representation to pro se
detained persons with appeals pending before the Board. The Pro Bono Project is now
part of the Executive Office for Immigration Review (“EOIR”) Legal Orientation and
Program, which has three additional initiatives: the Legal Orientation Program, the
Unaccompanied Alien Children Initiative, and the Model Hearing Program.96
In 2005, the Office of Refugee Resettlement (“ORR”) began the Unaccompanied
Children Program through funding provided by Congress to the EOIR.97 The program
coordinates a national effort to increase pro bono legal representation for immigrant
90 Immigration Court Practice Manual, Chapter 2.1(a) (Jun 10, 2013). 91 Practice Manual, Chapter 2.2(a). 92 Practice Manual, Chapter 2.2(b). 93 Id. 94 Shane Dizon & Nadine K. Wettstein, Immigration Law Service 2d § 1:194 (2015). 95 Id. 96 Id. 97 Linda Kelly Hill, The Right to Be Heard: Voicing the Due Process Right to Counsel for Unaccompanied Alien Children, 31 B.C.
THIRD WORLD L.J. 41, 48 (2011).
14
children in removal proceedings without a parent or legal guardian.98 The Vera Institute
operates this program, where non-profit organizations contract with the Vera Institute and
are responsible for finding pro bono attorneys for otherwise unrepresented individuals.99
The William Wilberforce Trafficking Victims Protection Reauthorization Act
(“TVPRA”) of 2008 helped to increased representation of unaccompanied children by
making the Secretary of Health and Human Services responsible to “ensure, to the
greatest extent practicable” that all unaccompanied children have legal representation,
and encouraging the Department of Health and Human Services (HHS) to “make every
effort to utilize the services of pro bono counsel” to represent them free of charge.100
The Act also includes a provision “to ensure that unaccompanied children receive
humane and appropriate treatment while in the custody of the U.S. Government.”101
Furthermore, the Act requires that children who pose no danger to themselves or others
be placed in the least restrictive setting possible and the ORR to do a suitability
assessment before placing the child with any agency or person.102 The Act prohibits
placing children, who have not committed crimes, in a prison with criminals.103 The Act
also requires family reunification or other appropriate placement in the best interest of the
unaccompanied alien children.104 The unaccompanied alien child provisions received
broad bipartisan support in the Senate. 105 The endorsers of this legislation were
98 Center on Immigration and Justice, Vera Inst. of Just., http://www.vera.org/centers/center-immigration-justice (last visited Feb. 24,
2015). 99 Hill, supra note 97, at 49. 100 LISA FRYDMAN ET AL., A TREACHEROUS JOURNEY: CHILD MIGRANTS NAVIGATING THE U.S. IMMIGRATION SYSTEM iii (2014). 101 154 Cong. Rec. S10886-01 (2008) (statement of Sen. Dianne Feinstein). 102 Id. 103 Id. 104 Id. 105 Id.
15
organizations representing mental health and child welfare professionals, as well as legal,
human rights, immigration and religious organizations.106
In 2010 the EOIR launched the Legal Orientation Program for Custodians of
Unaccompanied Alien Children (“LOPC”) to provide legal orientation presentations to
the adult caregivers of unaccompanied children in the EIOR removal proceedings.107
EOIR works with the Department of Health and Human Services, Office of Refugee
Resettlement, and non-government partners to carry out this program nationally.108
Despite all these available resources, most children appearing before immigration
judges are still unrepresented. In March 26, 2015, bill H.R. 1700 was introduced. The bill
intends to amend INA section 292 to require the Attorney General to appoint counsel for
unaccompanied alien children and aliens with serious mental disabilities.109
III. CURRENT STATUS
A. Children at the Border
1. Arriving Aliens
Unaccompanied alien children enter the immigration system when federal authorities
apprehend them on suspicion of violating immigration laws.110 These authorities are
subsidiary agencies of the U.S. Department of Homeland Security (“DHS”), such as
Customs and Border Protection (“CBP”), the U.S. Coast Guard, or Immigration and
Customs Enforcement (“ICE”). Once the suspect unaccompanied child is taken into DHS
custody, CBP or ICE places the child in a temporary DHS detention facility, making sure 106 Id. 107 Office of Legal Access Programs, U.S. Dept. of Justice, http://www.justice.gov/eoir/probono/probono.htm#LOPC (last updated
Jun. 2014). 108 Id. 109 Immigration and Nationality Act, H.R. 1700, 114th Cong. § 2 (2015). 110 OLGA BYRNE & ELISE MILLER, VERA INST. OF JUSTICE, THE FLOW OF UNACCOMPANIED CHILDREN THROUGH THE IMMIGRATION
SYSTEM 8 (2012).
16
that the child is not housed with unrelated adults.111 Then, DHS officer determines if the
person is younger than 18 years old and unaccompanied. Once DHS classifies the alien as
an unaccompanied child, CBP or ICE officer interviews the child and fills out a series of
immigration forms.112 The officer then refers the case to the ICE juvenile coordinator for
that district, who reports to a national juvenile coordinator in Washington, DC, contacts
the ORR, and arranges for the child’s transfer to the Division of Unaccompanied
Children’s Services (“DUCS”) facility designated by the ORR intake team.
For children who come from Mexico or Canada, special rules apply under the
TVPRA. When CBP officers apprehend children at the border or port of entry, they
provide them with a notice of rights and request for disposition (Form I-770).113 This
request allows the children to request a hearing before an immigration judge in the U.S.
or elect to return immediately to their home country through voluntary return.114 When a
child choses voluntary return, the officer must conduct a screening to determine that the
child is not a victim of trafficking or at risk of being trafficked upon return to the home
country, that the child does not have a credible fear of persecution in the home country,
and that the child is capable of making an independent decision to withdraw an
application for admission into the United States.115 If the child does not meet these
criteria or if DHS cannot make this determination within 48 hours of apprehension, then
the child must be transferred to the custody of ORR and go through the same process that
applies to children from another country.116
111 Byrne, supra note 110, at 10. 112 Id. 113 Id. 114 Id. at 10-11. 115 Id. at 11. 116 Id.
17
After a child is transferred to ORR custody, the ICE’s Office of the Principal Legal
Advisor prosecutes the case on behalf of the government. 117 ICE, acting through
Enforcement and Removal Operations (“ERO”), returns the child to the home country if
an immigration judge orders the child’s removal.118
2. Procedure
i. Expedited Removal
As previously discussed, under INA section 235(b)(1), expedited removal may be
applied to two categories of aliens.119 Moreover, on November 13, 2012, the INS
designated an additional class of aliens who may be placed on expedited removal
proceedings.
The first category are those aliens classified under INA section 235(b)(1)(A)(i). This
section allows expedited removal for aliens who are arriving in the United States.120 An
arriving alien is:
an applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport.121
The second category are those aliens classified under INA section 235(b)(1)(A)(iii),
which provides DHS discretion to designate certain other aliens to whom the expedited
removal proceedings may be applied, even though they are not arriving in the United
117 Id. at 12. 118 Id. 119 INS Inspector Field Manual, Chapter 17.15 I(a) (Apr 19, 2007). 120 Id. An arriving alien remains an arriving alien even if paroled pursuant to section 212(d)(5) of the Act, and even after any such
parole is terminated or revoked. However, an arriving alien who was paroled into the United States before April 1, 1997, or who was paroled into the United States on or after April 1, 1997, pursuant to a grant of advance parole which the alien applied for and obtained in the United States prior to the alien's departure from and return to the United States, will not be treated, solely by reason of that grant of parole, as an arriving alien under section 235(b)(1)(A)(i) of the Act. 8 C.F.R. § 1.2 (2015).
121 8 C.F.R. § 1.2 (2015).
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States.122 These aliens are those who have not been admitted or paroled into the United
States and who have not been physically present in the United States continuously for the
two-year period prior to a determination of inadmissibility by an immigration officer.123
The third additional category comprise those aliens who arrive in the United States by
sea, who are not admitted or paroled, and who have not been physically present in the
United States continuously for the two-year period immediately preceding the
determination of inadmissibility.124
When unaccompanied minor who is and appears to be inadmissible under INA
section 212(a)(6)(C) or (7), officers should first try to resolve the case under certain
guidelines.125 These guidelines permit granting a waiver, deferring the inspection, or
employing other discretionary means, if applicable, including withdrawal of an
application for admission.
Unaccompanied minors are placed in expedited removal proceeding only under
limited circumstances.126 The minor may be subject to expedited removal procedures
only if the minor has, in the presence of a DHS officer, engaged in criminal activity that
would qualify as an aggravated felony if committed by an adult; or has been convicted or
adjudicated delinquent of an aggravated felony within the United States or another
country, and the inspecting officer has confirmation of that order; or has previously been
formally removed, excluded, or deported from the United States. 127 All minors should be
treated with dignity and sensitivity of their age and vulnerability.128
122 INS Inspector Field Manual, Chapter 17.15 I(a) (Apr 19, 2007). 123 Id. 124 Id. 125 Inspector Manual, Chapter 17.15 I(f). 126 Inspector Manual, Chapter 17.15 I(f)(3). 127 Id. 128 Inspector Manual, Chapter 17.15 I(f)(4).
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ii. Office of Refugee Resettlement
The Office of Refugee Resettlement (“ORR”) is a program of the Administration of
Children and Families (“ACF”), an office within the United States Department of Health
and Human Services (“HHS”).129 One division of the ORR is the Unaccompanied
Children Services, which has the Unaccompanied Alien Children's program. This
program provides unaccompanied children with a safe and appropriate environment until
they are released to an appropriate sponsor while their immigration cases proceed.130
DHS immigration officials apprehend unaccompanied children and transfer them to the
care and custody of ORR.131 The office provides funds to state licensed care providers
that take care of unaccompanied children. Through this care providers network, children
receive classroom education, health care, socialization/recreation, vocational training,
mental health services, family reunification, access to legal services, and case
management.132
ORR provides placement services to unaccompanied children to ensure that children
are released to family members or other sponsors that can care for the child’s physical
and mental well-being.133 ORR conducts home studies prior to release for those children
who are required to receive home studies under TVPRA.134 ORR also funds follow up
services, for children at risk, after release to sponsors from ORR custody.135
One of the many responsibilities of the ORR is to ensure, to the greatest extent
practicable, that all unaccompanied children in custody have access to legal
129 Office of Refugee and Resettlement, http://en.wikipedia.org/wiki/Office_of_Refugee_Resettlement#cite_note-1 (last updated Dec.
17, 2014). 130 Unaccompanied Children's Services, Office of Refugee Resettlement, http://www.acf.hhs.gov/programs/orr/programs/ucs/about
(last visited Mar. 11, 2015). 131 Id. 132 Id. 133 Id. 134 Id. 135 Id.
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representation or counsel.136 To fulfill this responsibility, ORR coordinates a legal access
project that provides children with presentations on their rights, conducts individualized
legal screenings, and builds pro bono legal representation capacity.137 In addition, ORR
announced a program expansion to support the need for legal services after the release
from ORR custody of unaccompanied children.138 This expansion consists of additional
funds to existing grantees to hire and provide legal representation to approximately 2,600
unaccompanied children.139
B. Treatment of Children in the INA
In general, the Immigration and Nationality Act of 1952 refers to children in relation
to the children of an alien adult. The term “unaccompanied alien children” is not
mentioned in the INA. Instead, the term has been defined in section 462(g)(2) of the
Homeland Security Act of 2002 (“HSA”).140 Currently, the term “unaccompanied alien
child” under HSA means a child who has no lawful immigration status in the United
States; has not attained 18 years of age; and with respect to whom there is no parent or
legal guardian in the United States; or no parent or legal guardian in the United States is
available to provide care and physical custody.141
A bill has been introduced on February 27, 2015 to modify the treatment of
unaccompanied alien children who are in Federal custody by reason of their immigration
status. The bill proposes to limit the scope of the definition. The additional provision
would extend the list beyond a parent or legal guardian. It would say: “no sibling over 18
136 Id. 137 Id. 138 Id. 139 Id. 140 6 U.S.C. § 279(g)(2) (2014). 141 Id.
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years of age, aunt, uncle, grandparent, or cousin over 18 years of age is available to
provide care and physical custody.”142
Additionally, the bill would include that the term “unaccompanied children” shall
cease to include an alien if at any time a parent, legal guardian, sibling over 18 years of
age, aunt, uncle, grandparent, or cousin over 18 years of age of the alien is found in the
United States and is available to provide care and physical custody (and the Secretary of
Homeland Security and the Secretary of Health and Human Services shall revoke
accordingly any prior designation of the alien under this paragraph).143
The William Wilberforce Trafficking Victims Protection Reauthorization Act of
2008, section 235, 8 U.S.C. § 1232, provides special provision for treatment of
unaccompanied children. These provisions were created to enhance the efforts to prevent
trafficking in persons and to ensure that unaccompanied children are safely repatriated to
their country of nationality or of last habitual residence.144
Unaccompanied alien children who are nationals or habitual residents of a country
that is contiguous with the United States are subject to special rules under TVPRA. Once
an officer determines that the unaccompanied child from a contiguous country is
inadmissible under 8 U.S.C. § 1101, he or she may permit the child to withdraw the
child’s application for admission and return such child to the child's country of
nationality or country of last habitual residence.145 The Secretary of State has the
authority to negotiate agreements between the United States and countries contiguous to
the United States with respect to the repatriation of children.146
142 Homeland Security Act, H.R. 1153, 114th Cong. § 8 (2015). 143 Id. 144 8 U.S.C. § 1232(a)(1)(2014). 145 8 U.S.C. § 1232(a)(2)(B) (2014). 146 8 U.S.C. § 1232(a)(2)(C) (2014).
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With respect to access to counsel, TVPRA section 235(a)(5), 8 U.S.C. § 1232(a)(5),
provides that the Secretary of Health and Human Services shall ensure, to the greatest
extent practicable and consistent with section 292 of the Immigration and Nationality
Act, that all unaccompanied alien children who are or have been in the custody of the
Secretary or the Secretary of Homeland Security, and who are not described in subsection
(a)(2)(A), have counsel to represent them in legal proceedings or matters and protect
them from mistreatment, exploitation, and trafficking. To the greatest extent practicable,
the Secretary of Health and Human Services shall make every effort to utilize the services
of pro bono counsel who agree to provide representation to such children without
charge.147
At the same time, INA section 292, 8 U.S.C.A. § 1362, provides that “[i]n any
removal proceedings before an immigration judge and in any appeal proceedings before
the Attorney General from any such removal proceedings, the person concerned shall
have the privilege of being represented (at no expense to the Government) by such
counsel, authorized to practice in such proceedings, as he shall choose.148
The same bill previously mentioned proposes, in section 2, to amend INA section 292
by striking “(at no expense to the Government)” and adding “[n]otwithstanding any other
provision of law, in no instance shall the Government bear any expense for counsel for
any person in removal proceedings or in any appeal proceedings before the Attorney
General from any such removal proceedings.” This modification has the purpose to
clarify the intent regarding taxpayer-provided counsel.149
147 8 U.S.C. § 1232(a)(5) (2014). 148 8 U.S.C. § 1362 (2014). 149 Immigration and Nationality Act, H.R. 1153, 114th Cong. § 2 (2015).
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C. Why Right to Counsel Does not Extend to Immigration Court?
Courts have not found a Sixth Amendment right to appointment of counsel at
government expenses of indigent aliens in deportation or removal hearings because these
proceedings have been classified as civil rather than criminal.150 In Lopez v. Mendoza, the
United States Supreme Court explained this distinction as following:
A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry, though entering or remaining unlawfully in this country is itself a crime. The deportation hearing looks prospectively to the respondent's right to remain in this country in the future. Past conduct is relevant only insofar as it may shed light on the respondent's right to remain. The judge's sole power is to order deportation; the judge cannot adjudicate guilt or punish the respondent for any crime related to unlawful entry into or presence in this country. Consistent with the civil nature of the proceeding, various protections that apply in the context of a criminal trial do not apply in a deportation hearing.151
As a result, courts have consistently held that the Sixth Amendment does not
guarantee counsel to a noncitizen in removal proceedings.152
Although, courts have not recognized a Sixth Amendment right to counsel, Congress
has extended a qualified statutory right to counsel, which it characterizes as a
“privilege.”153 As previously stated, INA section 292, 8 U.S.C.A. § 1362, provides that
aliens in immigration proceedings should enjoy the privilege of being represented by
counsel. This statutory right is an integral part of the procedural due process to which the
alien is entitled under the Fifth Amendment of the Constitution.154 As the language of the
statute indicates, this right to counsel has to be exercised at no expense of the
Government. An unaccompanied alien child thus can secure paid or pro bono
150 Kevin R. Johnson, An Immigration Gideon for Lawful Permanent Residents, 122 YALE L.J. 2394, 2400 (2013). 151 I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (citation omitted). 152 Johnson, supra note 150, at 2401. 153 Id. 154 Saakian v. I.N.S., 252 F.3d 21, 24 (1st Cir. 2001).
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representation but is not guaranteed an attorney by the government in removal
proceedings.155
In 2002, a class action was filed alleging that the federal government deprived
unaccompanied indigent minors in immigration custody of their Fifth Amendment due
process right to counsel where it failed to appoint counsel to represent the minors in
removal proceedings. The District Court for the Eastern District of Washington dismissed
the action under Rule 12(b)(6), failure to state a claim upon which relief can be granted,
with prejudice in a decision issued on June 18, 2002. The court explained that the law in
the Ninth Circuit was clear that aliens have no right to appointed counsel. “Courts have
uniformly held in this circuit and elsewhere that in light of the non-criminal nature of
both the proceedings and the order which may be a result, that respondents are not
entitled to have counsel appointed at government expense.”156
The court also rejected the claims that case law had expanded aliens’ right to counsel
and that in certain cases children have been granted the right to appointed counsel in
proceedings that are themselves civil because of their special vulnerabilities.157 The court
said that the plaintiff failed at distinguishing precedent by providing a sufficient legal
basis for finding that due process requires more procedural protection for juvenal aliens
than adults.158 The court also stated that there is no case that has held that a juvenile
alien’s interests are different from those of an adult.159
155 Johnson, supra note 150, at 2402. 156 Machado v. Ashcroft, No. CS-02-0066-FVS, at*12 (E.D. Wash. Jun. 18, 2002) (order granting motion to dismiss) (citing United
States v Gasca-Kraft, 522 F.2d 149, 152 (9th dr. 1975)). 157 Id. at*18. 158 Id. 159 Id. at*20.
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IV. PROPOSALS
Whether in the context of international law or national child welfare, it has been a
consistent policy to treat children differently because of their vulnerability. International
law already has developed guidelines that ensure the appropriate treatment of this
vulnerable class. Although, the United States has not ratified the United Nations
Convention on the Rights of the Child (“UNCRC”), the U.S. signed it on February 16th,
1995 and played an active role in drafting it. Article 3, section 1 of the UNCRC
establishes that “[i]n all actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative authorities or legislative
bodies, the best interests of the child shall be a primary consideration.”160 This principle
is also present in the context of national child welfare. The “best interest of the child”
standard is the cornerstone principle of child protection.161 Surprisingly, this principle is
not the primary consideration in all immigrations proceedings.162 Rather, the use of this
principle ranges from being mandated by statute to complete absence, depending on the
type of relief available to the child.163
Unaccompanied alien children may apply for special immigrant juvenile status
(SIJS).164 However, to be eligible for SIJS relief, an applicant must be declared a
dependent of a state juvenile court in the United States, be deemed eligible and continue
to be eligible for long-term foster care, and have been the subject of judicial or
administrative proceedings in which it was determined that it was not in the best interests
of the minor child to be returned to his or her country of nationality or country of last 160 Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3. 161 See Frydman, supra note 100, at iii. 162 Id. 163 Bridgette A. Carr, Article, Incorporating a ‘Best Interest of the Child’ Approach into Immigration Law and Procedure, 12 Yale
Hum. Rts. & Dev. L. J. 120, 135 (2009). 164 Carr, supra note 163, at 136.
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habitual residence.165 A non-immigration judge adjudicator, with special expertise in
issues facing children, makes the determination regarding the best interest of the child
when analyzing SIJS relief.166 The process of obtaining SIJS relief involves a two-tiered
system.167 First, a state juvenile court must make factual findings168 related to the child’s
familial situation and best interests.169 Then, federal immigration officials use the state
court’s predicate findings to determine eligibility for immigration relief.170 The first
phase of the process was delegated to state courts by Congress in order to benefit from
state expertise in fact finding on family and juvenile issues.171 However, this structure has
allowed variations within and among states in interpreting certain provisions of the SIJS
law.172 Significant discrepancies among state courts had created a situation in which state
courts are sometimes serving as gatekeepers for immigration relief.173
In May 22nd, 2007, the U.S. Department of Justice issued the Operating Policies and
Procedures Memorandum 07-01 (“OPPM 07-01”).174 This memo provides the guidelines
for immigration court cases involving unaccompanied alien children. When addressing
the “best interest of the child” principle, OPPM 07-01 establishes that questions of
admissibility, eligibility for relief, etc… are governed by the INA and the concept of
“best interest of the child” does not negate the statute or the regulatory delegation of the
165 Id. 166 Id. 167 Meghan Johnson & Kele Stewart, Unequal Access to Special Immigrant Juvenile Status: State Court Adjudication of One-Parent
Cases, A.B.A. (Jul. 14, 2014), http://apps.americanbar.org/litigation/committees/childrights/content/articles/summer2014-0714-unequal-access-special-immigrant-juvenile-status-state-court-adjudication-one-parent-cases.html.
168 The state court must make the following findings: (1) the child is dependent on the court or the court has placed the child in the custody of an individual or entity; (2) reunification with one or both parents is not viable due to abandonment, abuse, neglect, or similar basis; and (3) it is not in the best interests of the juvenile to be returned to his or her country of origin. The findings may be made in a wide variety of state proceedings including custody, child welfare, guardianship, adoption, and delinquency cases. Congress chose to rely on state courts to make those findings because of their special expertise in making determinations as to abuse and neglect issues, evaluating best interest factors, and ensuring safe and appropriate custodial arrangements. Id.
169 Id. 170 Id. 171 Id. 172 Id. 173 Id. 174 EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, OFFICE OF THE CHIEF IMMIGRATION JUDGE, OPPM 07-01, GUIDELINES FOR
IMMIGRATION COURT CASES INVOLVING UNACCOMPANIED ALIEN CHILDREN (2007).
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Attorney General’s authority, and cannot provide a basis for providing relief not
sanctioned by law.175 The “best interest of the child” is only a factor that relates to the
immigration judge’s discretion in taking steps to ensure that a “child appropriate” hearing
environment is established, allowing a child to discuss freely the elements of his or her
claim.176 The consequences of this policy is that not all children are ensured a child
appropriate environment when facing removal or deportation.177 It is only up to the
judge’s discretion, it is not a requirement. Moreover, thousands of unaccompanied
children are sent back to their home countries every year through removal or voluntary
departure orders, without anyone investigating whether return is safe or will promote that
child’s welfare.178 Some children may be returning to dangerous conditions, or to
conditions that violate international recognized rights.179
Therefore, the best interest of the child should be incorporated into all immigration
procedures, actions, and decisions concerning unaccompanied immigrant children.180
Congress should enact legislation to incorporate the “best interest of the child” standard
and develop immigration relief to prevent children from being removed or deported to
their home countries when the return would be against their best interest. 181 The
legislation should read as follow: “In all immigration proceedings concerning
unaccompanied alien children the best interests of the child shall be a primary
consideration.”
175 Id. 176 Id. 177 See Frydman, supra note 100, at iii. 178 Frydman, supra note 100, at 56. 179 Id. at 57. 180 See Frydman, supra note 100, at iv. 181 Id.
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OPPM 07-01 also suggests making some modifications to the courtroom to ensure
appropriate courtroom settings for cases involving unaccompanied alien children.182
These modifications may include courtroom orientation, separate schedules, judges
removing the robe, etc. 183 Unfortunately, all judges do not implement these
modifications, which creates an adversarial environment in many courtrooms throughout
the country. Thus, it would be more appropriate for unaccompanied alien children cases
to require a more stringent implementation of these conditions.
It is unlikely that case law will evolve to extend the constitutional right to counsel at
the expense of the Government for the benefit of immigrants because of the civil nature
of immigration proceedings. However, federal law already recognizes the instances
where children should go through legal procedures with appropriate representation. In
cases of child abuse or neglect, Congress already requires from States who receive funds
under CAPTA to appoint “a guardian ad litem, who has received training appropriate to
the role, including training in early childhood, child, and adolescent development, and
who may be an attorney or a court appointed special advocate who has received training
appropriate to that role.”184
Likewise, Congress could enact law that requires the appointment of counsel on
immigration proceedings to unaccompanied children. Research done in juvenile
dependency proceedings, has shown that children with effective counsel were moved to
permanency at about twice the rate of unrepresented children.185 This data indicated that
182 EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, OFFICE OF THE CHIEF IMMIGRATION JUDGE, OPPM 07-01, GUIDELINES FOR
IMMIGRATION COURT CASES INVOLVING UNACCOMPANIED ALIEN CHILDREN (2007). 183 Id. 184 Child Abuse Prevention and Treatment and Adoption Reform, 42 U.S.C. § 5106a (b)(2)(B)(xiii) (2014). 185 Harfeld, supra note 42, at 7.
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providing counsel to children was economically prudent. The state saved money by
abbreviating the court case and the foster care stay.186
Similarly, in immigration proceedings, there is a strong argument that “Economic
Efficiency” will be served by providing counsel to unaccompanied children. Even
though, appointment of counsel may initially result in additional cost to the Government,
it can create a more time and cost-effective immigration system.187 According to the
Department of Justice, measures to provide counsel to unaccompanied children and
mentally disable aliens would save money over all by reducing expensive prolonged
detention for these immigrants.188 Children would spend less time in custody and the
hearings would be more orderly and efficient.189 Efficient hearings would mean that
judges could spend less time on each case. As a matter of example, just consider the
amount of time that a judge spends explaining the proceedings to children or the meaning
of certain legalese and procedures. All that time could be saved if an expert lawyer would
handle the representation. Also, for instance, children without a valid claim for relief
from removal would be returned sooner and would be just left with ICE to negotiate a
safe and efficient return to their home countries.190
This argument has been raised when debating the right to appointed counsel on
criminal cases. In Gideon the Supreme Court said that “Governments, both state and
federal, quite properly spend vast sums of money to establish machinery to try defendants
accused of crime.”191 Might as well, the immigration “machinery” would best be served
186 Id. 187 Wendy Shea, Almost There: Unaccompanied Alien Children, Immigration Reform, and A Meaningful Opportunity to Participate in
the Immigration Process, 18 U.C. DAVIS J. JUV. L. & POL'Y 148, 169 (2014). 188 Julia Preston, In a First, Judge Orders Legal Aid for Mentally Disabled Immigrants Facing Deportation, NYTIMES.COM, (April 24,
2013), http://www.nytimes.com/2013/04/25/us/legal-aid-ordered-for-mentally-disabled-immigrants.html (last visited Mar. 30, 2015).
189 Shea, supra note 187, at 169-170. 190 Id. at 170. 191 Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
30
by making the best use of the time and efforts spent by its officials. Legal service
providers are already being placed in the courtrooms.192 It makes sense to utilize this time
and resources in an effective manner.193 This would not only benefit the unaccompanied
children but also the immigration system as a whole.194
As pointed out previously, when the TVPRA was enacted, unaccompanied alien
children provisions received broad bipartisan support. This broad support shows that in
the political arena, there is consensus when recognizing basic inalienable rights of alien
children. The evolution of the law, in civil matters concerning minors and mentally
challenge, has shown that when dealing with these type of person, efforts can be done in
order to ensure that the legal system does not treat them unfairly by providing a
meaningful opportunity to be heard. Despite of what the future holds to these children,
we owe them an opportunity to tell why they should pursue their dreams in this great
nation. The answer as to whether unaccompanied alien children have a valid claim to
remain in this country would only depend on their capacity to convey their story through
the effective assistance of counsel.
192 Samantha Casey Wong, Perpetually Turning Our Backs to the Most Vulnerable: A Call for the Appointment of Counsel for
Unaccompanied Minors in Deportation Proceedings, 46 CONN. L. REV. 853, 875-76 (2013). 193 Wong, supra note 192, at 876. 194 Id.
