By Jennifer Quezada Castillo.
“There are some individuals who, by reason of age, ignorance or mental capacity are incapable of representing themselves adequately in a prosecution of a relatively simple nature.”
Immigration proceedings are far from being simple and easily understood procedures. The court in Castro-O’Ryan v. INS recognized the complexity of our immigration laws by holding that “‘immigration laws [are] second only to the Internal Revenue Code in complexity.’” If courts have recognized the intricacy of our immigration laws, it’s difficult to comprehend why we would require a child to make sense of this complex system without the assistance of an expert in the field. We shouldn’t. However, our laws do not reflect this simple and logical answer.
With the current state of the law, children must blindly navigate the immigration system, either alone or with the assistance of family members, who may be as lost as they are. Although the government has recognized that undocumented immigrants have a right to access to legal counsel in removal proceedings, it has yet to recognize the right of indigent undocumented immigrants to have counsel appointed in removal proceedings.
This article focuses on the right of unaccompanied alien children to appointed counsel and argues that the current laws in the United States are in violation of international law.
In immigration law, most terms are terms of art, and are thus defined under the Immigration and Naturalization Act (INA), which contains the provisions that govern immigration law. One such term defined within the INA is “child.” Under INA § 101(b)(1), and (c)(1), a child is defined as “an unmarried person under twenty-one years of age.”
However, this definition does not apply to an unaccompanied child. In 2002, the Homeland Security Act (HSA) transferred responsibility for detained alien children to the Department of Health and Human Services and introduced the term “unaccompanied alien child.” Under the HSA, an “unaccompanied alien child” is an individual “who has no lawful immigration status in the United States, [and who is under] 18 years of age, [without a] parent or legal guardian in the United States, or [without] a parent or legal guardian in the United States [who] is available to provide care and physical custody.”
This definition is important because it could open specific immigration benefits to the children who fall within this category. It is also important because many of the children who are still detained fall under this category, reinforcing the argument that children are unable to hire counsel because it either means they don’t have a legal guardian or parent in the U.S., or if they do, the parent or legal guardian cannot provide care for them, much less afford an attorney to represent the child.
In April 2013, the U.S. District Court for the Central District of California held that mentally ill individuals have a right to an appointed Qualified Representative in removal proceedings. The District Court reasoned that the “appointment of a qualified representative” is a “reasonable accommodation” under the Rehabilitation Act. Thus, the District Court avoided addressing whether the plaintiffs’ claim that the Fifth Amendment and the Due Process Clause requires they be appointed counsel. Despite this fact, the Court recognized the vulnerability of mentally ill individuals and the need to ensure they can meaningfully participate in their own removal proceedings.
The Court rejected the government’s argument that providing legal representation to mentally ill individuals would pose an economic burden on the government. The Court disagreed reasoning that the government “ha[s] been able to obtain pro bono counsel for certain class members from various non-profit organizations and pro bono panels.” Additionally, the government would not be required to appoint bar-certified attorneys, so long as the legal representative met the requirements of a Qualified Representative.
A Qualified Representative is: “(1) an attorney, (2) a law student or law graduate directly supervised by a retained attorney, or (3) an accredited representative, all as defined in 8 C.F.R. § 1292.1” If the country is not prepared to appoint attorneys to indigent undocumented children, this would be a great alternative which would likely place the U.S. in compliance with international law.
Convention on the Rights of the Child
In 1989, the Convention on the Rights of the Child set forth rights protecting the “welfare and well-being of children,” while also “empower[ing] [the children] so that they can now express their views and potentially make their own distinct contributions to decisions that could determine their fate.” The treaty entered into force September 2, 1990.
It was born out of an effort of several nations to “articulate children’s needs and rights in universal terms”, after recognizing that children remained voiceless despite decades-long efforts to advance protections to them. 196 States have signed the Convention. 195 have ratified it, with the United States being the only state that has yet to ratify it. The U.S. signed the document on February 16, 1995.
In its preamble, the treaty quotes from the Declaration of the Rights of the Child to stress the importance of extending special protections to children to their inherent vulnerability. It states, “‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.’”
Both the Reagan and George H. W. Bush administrations participated in the drafting of some of the provisions incorporated in the Convention on the Rights of the Child. Despite incorporating U.S. laws and principles, it is the only country resisting ratification. However, by signing it, the U.S. recognized the importance and legitimacy of the protections advanced by the treaty.
Some of the arguments extended to justify not ratifying the treaty involve concerns over the treaty diminishing parental rights and usurpation of American sovereignty. Some opponents fear the treaty will usurp American sovereignty by “demanding that the government pay for [the things the treaty calls for].”
Another argument that has been made is that the United States typically considers one human rights treaty at a time. As of 2005, the Convention on the Elimination of All Forms of Discrimination against Women was cited as the nation’s top priority among the human rights treaties. It does not seem like these arguments are sufficient to determine the United States should not consider ratifying the Convention; however, we will not explore the weaknesses and strengths of those arguments in this paper.
An analysis of some of the protections extended by the Convention is important in our analysis of the need for appointed counsel in deportation proceedings. These protections serve as a recognition that international law supports a finding that children need representation when facing adversarial proceedings, such as removal proceedings.
Denial of Appointed Counsel in Removal Proceedings to Children Violates International Law
Relevant to this discussion is Part I, Article 3 of the Convention on the Rights of the Child, which provides that “[i]n all actions concerning children, whether undertaken by . . . courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” It goes on to state that “State Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, . . . shall take all appropriate legislative and administrative measures.” Most relevant is Article 37(d), which provides:
Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action. (emphasis added).
In terms of unaccompanied minors, they often cannot afford private legal counsel; therefore, the appropriate measure would be to require courts to appoint counsel to such indigent individuals. Although the Court struggles with the notion that removal is a form of deprivation, some justices, like Justice Brandeis, have recognized removal “is a uniquely severe form of deprivation.” In Ng Fong Ho v. White, Justice Brandeis acknowledged that
[T]o deport one who so claims to be a citizen obviously deprives him of liberty, as was pointed out in Chin Yow v. United States, 208 U.S. 8, 13 [(1908)]. It may result also in loss of both property and life; or of all that makes life worth living.
The language within Article 37(d), requiring that other appropriate assistance be provided to a child deprived of his or her liberty, can thus be interpreted to require appointed counsel when other measures are inadequate to ensure the child receives full protection under the law because children do suffer some form of deprivation of liberty.
Even if the Convention were binding on the United States, the argument would be that court appointed counsel is not required in civil matters. This argument would be invalid under the Convention. Although Article 41 recognizes a State’s autonomy over its laws, it only recognizes it as long as the laws in place are “more conducive to the realization of the rights of the child.” Denial of appointment of counsel would not be more conducive to the realization of the child’s rights. Using the Convention would serve as a persuasive basis that judges may be inclined to take under advisement, because the treaty reflects the “best interest of the child” standard.
The “best interest of the child” standard “is typically employed by courts or administrative bodies considering issues implicating a child’s welfare, including child custody and placement decisions.” This standard “generally does not provide legal guidance as to whether or not a child is subject to removal.” Although this standard is not generally relied on in immigration law, the standard may “inform the conduct of immigration removal proceedings.
Children need the assistance of counsel due to the natural vulnerabilities caused by their childhood. Although individuals are not generally given deferential treatment based on non-immutable characteristics, and certainly not in immigration cases, the courts have approached cases involving children differently. Judges recognize, whether in immigration court, or criminal court, that children are vulnerable.
Merely providing access to legal counsel is insufficient to guarantee they are fully protected from the injustices of the law. Many undocumented children are unaccompanied minors who lack the resources to hire legal counsel to represent them in court. The definition of “unaccompanied alien child” under the Homeland Security Act of 2002, supports this proposition.
Access to legal counsel does not place the country in compliance with international law. In order to comply with the Convention on the Rights of Children, our laws must permit for a child to receive legal assistance of counsel at the government’s expense, or at the very least, appointment of a Qualified Representative.
* The featured image is from Immigration news: Inside LA’s Courts, Overwhelmed by Child Migrant Cases, KPCC, https://www.scpr.org/programs/take-two/2014/08/27/39052/immigration-news-inside-la-s-overwhelmed-immigrati/.
Jennifer Quezada Castillo wrote this article as a third-year at William & Mary Law School. Jennifer is now a criminal defense and immigration attorney in Richmond, Virginia. She is currently working at the law firm Tingen & Williams.