Child Migrants and the Right to Counsel

On July 9, the Northwest Immigrant Rights Project and several other organizations filed a lawsuit against the federal government over its failure to provide legal representation to children placed into removal proceedings in immigration court.  The lawsuit alleges that the federal government has violated the due process clause of the U.S. Constitution’s 5th Amendment as well as the Immigration and Nationality Act’s provisions requiring a “full and fair hearing” in immigration court.

The case comes at a particularly critical time, as waves of child migrants have been pouring over the U.S. border with Mexico in recent months.  The number of child migrants coming into the U.S. has been so great that the federal government has been scrambling to find housing for them.

Given the enormity of the consequences that children face when they attend immigration court, it’s high time that someone challenged the federal government’s policy of letting them go without attorneys.  To put things in perspective, anyone who has been accused of a crime in the United States is entitled to an attorney under the 6th Amendment of the U.S. Constitution.  This includes people charged with crimes such as driving with license suspended or DUIs, which often result in a day or less of jail time if the person is convicted.

The consequences faced by child migrants in immigration court are immeasurably greater.  If a child loses his or her case in immigration court, that child will likely be deported to the country from which he or she came.  In the case of child migrants, this is often the country that the child fled because of abysmal conditions and/or threats to his or her safety.

The government has up to this point justified this apparent inconsistency by turning to the fact that immigration proceedings are technically civil, rather than criminal, proceedings.  A person faced with civil proceedings has not historically been guaranteed counsel.

It’s time that the federal government acknowledge the fact that some civil proceedings, such as those conducted in immigration court, involve consequences that are so severe that they warrant the guarantee of counsel.   If NWIRP and its partners are successful in their lawsuit, it could be the first step toward making this a reality.