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Wednesday, September 28, 2022

Guest Commentary

Guest column: Immigrant children need fair days in court


In March, a federal immigration judge gave sworn testimony that three- or four-year-old children could represent themselves in immigration proceedings. The judge oversees training and professional development of other immigration judges.

The Sixth Amendment bestows the right to legal counsel to adult defendants in criminal proceedings only. Children gained the right to counsel in juvenile court proceedings via the due process clause of the Fourteenth Amendment instead of the Sixth, because juvenile proceedings were deemed quasi-criminal.

In the case of In re Gault, the Supreme Court asserted that counsel is necessary to navigate the complexities of law. The Court’s ruling was informed, in part, by the Presidential Crime Commission, which opined that informality present in the juvenile courts was being abused. Counsel could protect the child’s rights and hold the court to a higher standard of rationale and regularity in its rulings.

Justice Fortas insisted that we must “confront the reality” that the child is facing loss of liberty in juvenile proceedings. The right to counsel only attaches if the youth is subject to incarceration.

In 2014 just under 70,000 unaccompanied minors arrived in the United States, mostly from Honduras, El Salvador, Guatemala and Mexico – countries embroiled in violent drug wars with disturbing homicide rates. In the last two years, 100,000 have journeyed here.

These children aren’t facing incarceration, but they are facing possible detention, deportation, trafficking, forced gang involvement, prostitution, forced labor, rape, torture and death. This is not rhetorical sensationalism, it is reality.

So what about the child facing deportation?

The right to counsel is granted to immigrants in removal proceedings by the Fifth Amendment in upholding “fundamental fairness,” but the immigrant must exercise the right at their own expense. Some federal appellate courts have suggested that an individual could request appointed counsel to meet minimum standards for due process on the basis of “age, ignorance, or mental capacity,” but this has not been tested. Could a case not be made to then bestow the right to unaccompanied minors as a protected class of indigent persons? Or even extend the right via the Fourteenth Amendment as it was granted to juvenile delinquents in quasi-criminal proceedings in Gault?

As in the pre-Gault era, children are facing abuses of informality and arbitrary treatment, evidenced by the federal judge’s preposterous claims. Attorneys at organizations like ACLU and Kids in Need of Defense have stepped up to offer pro bono services to these children, and the federal government has offered some financial assistance in this regard. These organizations have indicated that we have a serious humanitarian crisis that we are not fully and systematically acknowledging.

As Europe’s refugee crisis was still building to full crescendo, the U.S. was reeling over its own refugee crisis. Yet as President Obama pledged to resettle 10,000 Syrian refugees this fiscal year, little noise was made that we only planned to resettle 3,000 Central Americans.

This election cycle, Americans have been sound-bitten to death. It’s impossible for any issue of substance to endure in public consciousness, especially one impacting children. A bill entitled the Fair Day in Court for Kids Act of 2016 was introduced into Congress that would mandate appointment of counsel for unaccompanied minors. It is currently awaiting its committee hearing at the House of Representatives Judiciary Committee.

This conversation is really ours to carry, and it is not the media’s or any single politician’s to squander. If you live in Congressman Ted Poe’s or Congresswoman Sheila Jackson Lee’s districts, a simple phone call and brief conversation might nudge the bill that much further.

Maia McCoy is a student in the Graduate College of Social Work.

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