Because defendants in immigration court do not have the right to a free, court-appointed attorney — as would be the case in a criminal proceeding — migrant children as young as three years old have been forced to represent themselves during their own deportation and asylum hearings.
The issue received greater attention last year as news outlets reported on the thousands of migrant children separated from their parents under the Trump administration’s “zero tolerance” policy, but according to a report by fact-checking website Snopes, children and toddlers have been defending themselves in immigration court for years.
In the United States, any defendant in a criminal case is constitutionally entitled to be represented by a court-appointed attorney at no cost if they cannot afford to hire their own. However, this constitutional guarantee does not extend to civil cases or immigration courts (although in some states and some circumstances, state law does entitle individuals to free legal aid in civil cases).
Instead, those who find themselves before immigration courts, whether adults or children, have the right, if not always the wherewithal, to obtain legal representation from one of a number of non-profit organizations and law firms who work on a pro bono basis.
Snopes noted that the Department of Homeland Security’s Office for Refugee Settlement indirectly contributes to the defense of some in immigration court by contracting with non-profit Vera Institute for Justice, an organization that “sub-contracts with more than a dozen organizations around the country to provide free legal representation and advice to immigrants facing deportation and other legal issues.”
However, in April 2018, former Attorney General Jeff Sessions announced that the Executive Office for Immigration Review would be conducting a cost-effectiveness review of the program.
Even with the program in place, tens of thousands of migrant children wander through America's immigration system without adequate representation:
According to statistics collected by Syracuse University, 58,015 unaccompanied children (i.e., juveniles under the age of 18 separated from their legal adult guardians) were subjected to deportation hearings in American immigration courts in 2017.
That figure was 61,254 in 2016, and 35,113 in 2015. Between 2005 and 2017, some 300,000 unaccompanied children have had to appear in court in deportation hearings, and according to the data around half of children in deportation cases do not have legal representation. A child who doesn’t have a lawyer is over four times more likely to receive a removal order (deportation) than a child who does.
The American Civil Liberties Union filed suit against the U.S. government in 2014, alleging that its processes violate “the due process clause of the Fifth Amendment and the Immigration and Nationality Act, demanding that immigrant children be given court-appointed free legal aid in immigration proceedings.”
The 9th Circuit Court of Appeals rejected the lawsuit in 2016 on a question of jurisdiction and rejected a similar high-profile lawsuit in January 2018, leaving in place the status quo: thousands of children with no right to court-appointed attorneys in immigration court.
Megan McKenna is communications director at Kids in Need of Defense, a charity devoted specifically to advancing and upholding the rights of children in immigration policy. She told us that the youngest child the organization had formally represented in immigration court was just two years old.
McKenna described the process as “unforgiving,” adding that “They’re all coming for a very difficult reason. No child would come on their own, hundreds or thousands of miles, unless something was really wrong.”