Friday, July 11, 2014

U.S. Is Violating Domestic and International Law By Failing to Provide Attorneys to Children in Immigration Proceedings

News reports have recently been full of stories regarding the current crisis involving more than 50,000 Central American unaccompanied children arriving at the U.S.-Mexican border in the last six months.  Many of these children may have legitimate claims for asylum in the United States and are fleeing crime and violence in their home countries, but are being denied legal representation under U.S. law.  To make matters worse, several U.S. politicians have called for expedited deportation of these children back to their home countries, possibly with truncated legal proceedings.  To deny these children full immigration hearings with legal representation is a denial of their right to due process under both the U.S. Constitution and international law. 

The Fifth Amendment of the U.S. Constitution guarantees the right of due process to all persons in the United States, regardless of immigration status.  In the context of immigration proceedings, that right has been interpreted to mean that the hearings must be "fundamentally fair."  It is clearly a denial of fundamental fairness to expect a child from a foreign country to make a legal claim to asylum in the United States without assistance from an attorney.  The U.S. government seeking to deport the child is represented by an attorney.  To be "fair", both sides must have legal representation.  Last year, the U.S. government recognized that it is unfair to expect persons with mental disabilities to be unrepresented in immigration proceedings and adopted regulations providing for legal representation for such persons.  That same logic applies to children as well.

The United States is also a party to a number of international treaties that provide special protections for children, including the International Covnenant on Civil and Political Rights, the U.N. Refugee Convention, the Convention Against Torture, and the Convention against Transnational Organized Crime.  While these international instruments do not explicitly provide for a right for unaccompanied minors to have access to free legal assistance in all cases, they certainly impose an international obligation to protect children and their legal rights, including their due process rights.  Many countries provide free legal assistance to unaccompanied minors seeking asylum and an argument can be made that there is a developing customary international law norm in this regard in addition to any treaty-based obligations.

The American Civil Liberties Union (ACLU) filed a class action lawsuit against the U.S. government yesterday demanding access to free legal representation for children in removal proceedings.  Rather than spending resources defending this lawsuit, the U.S. government should spend its resources developing a program to provide legal representation to these vulnerable children fleeing violence and crime in their home countries.


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