Monday, May 11, 2020

Immigration Article of the Day: Unaccompanied Minors, Statutory Interpretation, and Due Process by Shani M. King and Nicole Silvestri Hall


Unaccompanied Minors, Statutory Interpretation, and Due Process by Shani M. King and Nicole Silvestri Hall108 California Law Review 1 (2020)


In recent years, there has been a massive influx of unaccompanied minors crossing the southern border. Under the Trump administration, migrant children are being held in detention centers at unprecedented levels, with a five-fold increase in the last year alone. Without legal representation, unaccompanied minors have little to no capability to defend against removal charges and to advocate for any existing rights that they might have to remain in the United States. Unaccompanied minors need legal advocates to safeguard their constitutional and statutory rights: the need for counsel is arguably greater now than ever as the Trump administration experiments with the hostile immigration practice — characterized as immoral by most religious leaders and inhumane by a bipartisan group of former U.S. attorneys — of separating children from families at the border. Children separated from their families under this policy have been classified as unaccompanied minors. While the administration has since terminated this policy, largely due to nearly uniform global public outrage, hundreds of unaccompanied minors remain separated from their families after the reunification deadline imposed under a federal court order.

For unaccompanied minors, a shift in focus is needed in the search for appointed counsel — away from the statutory provisions that guarantee the right to counsel, and toward the provision which guarantees the right to a fair hearing. Recent scholarship has furthered constitutional due process arguments in favor of appointing counsel for immigrants in removal hearings, but courts have not yet accepted a constitutional or statutory argument that appointed counsel is required for groups of non-citizens or non-citizen minors to vindicate their right to a fair hearing in immigration court. Courts have nonetheless dropped very real hints that particularly vulnerable unaccompanied minors, as a group, may prevail using an argument grounded in the fair hearing provision.

Statutory arguments have long been overlooked due to the assumption that the right to counsel provision intended to preclude appointed counsel. This Article, however, proposes a novel statutory argument in favor of finding a categorical right to appointed counsel for unaccompanied minors using the fair hearing provision as the basis for this right. We provide the historical framework behind the enshrinement of these two rights and then argue that Congress never intended to preclude appointed counsel. We further propose that unaccompanied minors have been granted a positive liberty interest under the Trafficking Victims Protection Reauthorization Act (TVPRA) and we use this statutory interest as the basis of an original means of surmounting the Lassiter presumption. We conclude by positioning unaccompanied minors’ removal hearings within the landscape of the current appointment doctrine to demonstrate an increased likelihood of success in finding a categorical right to appointed counsel using the fair hearing provision and the TVPRA as a positive liberty interest.


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