Defenseless: Children Stranded In A Foreign Land And A Foreign Legal System

Last week, Governor Deval Patrick stepped up to allow Massachusetts to provide shelter to unaccompanied migrant children who have arrived at the United States-Mexico border, recognizing the unique vulnerability of “children alone in a foreign land.” The people of Massachusetts should be proud that they have elected a governor willing to exercise leadership and compassion on behalf of “the least of those” among us, especially children.

Yet, despite efforts to find adequate shelter and to reunite these children with family members where possible, the United States leaves children stranded in a foreign legal system.

...in immigration court, the Department of Homeland Security is represented by a trained lawyer who acts as a prosecutor and argues that the child should be deported. The child, however, is represented by no one.

The U.S. government is now processing tens of thousands of children for deportation, ranging in age from toddlers to teenagers. Most have come seeking protection from extreme violence and poverty in Central America, and many of them qualify for relief under our laws. According to one recent study by the U.N. High Commissioner for Refugees, more than half of the children arriving from Mexico and Central America may be entitled to protection from deportation.

But how are they to get it?

Immigration law is famously complex, often eluding even well-trained legal professionals. In fact, errors in a recent Supreme Court decision showed that the intricacies of this area of law can be alien even to the justices of our highest court.

In addition to being legally complex, immigration cases are factually nuanced. They frequently require a detailed investigation, thorough documentation and even testimony by expert witnesses. When the subjects are victims of trauma and violence, and especially when they are children, it can be particularly challenging – and all the more important – to elicit and meticulously document the facts that are relevant to a fair and accurate determination of the immigration case.

That complexity is why these cases are decided in immigration court, by specialized immigration judges. And it is also why, in immigration court, the Department of Homeland Security is represented by a trained lawyer who acts as a prosecutor and argues that the child should be deported. The child, however, is represented by no one.

Instead, a child who wants to avoid being returned to a place where she may be killed has to meet the burden – on her own – to prove that she is entitled to remain in the United States under one of the existing provisions of our byzantine immigration codes. That is almost an impossible task, even for adults. According to one study, non-citizens in immigration removal proceedings are about six times less likely to prevail in their immigration cases if they are not represented by an attorney.

For children, even more so than for adults, it is almost impossible to imagine how a decision made under such circumstances could be fundamentally fair or achieve an accurate result.

Government officials, like Attorney General Eric Holder, have recognized the importance of providing children with representation. Testifying before Congress last year, Attorney General Holder observed, “...it is inexcusable that young kids — ...six, seven-year-olds, fourteen-year-olds —- have immigration decisions made on their behalf, against them...and they’re not represented by counsel. That’s simply not who we are as a nation.”

Yet the Obama administration has provided legal representation for only a small fraction of the children that it seeks to deport.

In Massachusetts and other parts of the country, a network of dedicated legal services attorneys at nonprofit organizations is already overwhelmed by the existing needs of children in deportation proceedings.

In Lynn, a ten-year-old boy who survived years of domestic abuse by his grandparents and lost two of his fingers to a machete when he refused to sell drugs for a gang is one of the lucky ones who has an attorney dedicated to helping him receive the protection that our laws might afford him. But even with the herculean efforts of nonprofit organizations and their private partners, most children remain unrepresented.

...the Obama administration has provided legal representation for only a small fraction of the children that it seeks to deport.

That is why, on July 6, the American Civil Liberties Union and other groups filed a nation-wide class action demanding that the federal government provide legal representation to children that it seeks to deport. The plaintiffs include a 15-year-old who has lived in the United States since the age of one, and a ten-year-old who watched his father be murdered by gang members who targeted his family. All of them are children who are facing deportation proceedings on their own.

Without a lawyer, their legal proceedings will be empty shells. The Supreme Court has long recognized that children facing juvenile delinquency proceedings must be provided with legal representation. The fundamental fairness of these proceedings, the Court understands, depends on the assistance of counsel with the legal, factual and procedural aspects of a child’s case. “The child requires the guiding hand of counsel at every step in the proceedings against him,” the Court recognized . As the Court acknowledged nearly a half century ago, the right to representation for such children “is not a formality.” “It is of the essence of justice.”

Yet children facing deportation to countries in which their lives may be in peril have for years been denied this protection. With Governor Patrick clearing the way for hundreds of child migrants to be brought to shelters in the Commonwealth, it is essential that the federal government act to protect their right to legal representation. There is no other way to provide basic justice or to ensure that fair and accurate decisions can be made in these children’s immigration cases.

This piece was co-authored by Adriana Lafaille. Lafaille is an Equal Justice Works fellow at the ACLU of Massachusetts. Her fellowship is sponsored by Greenberg Traurig, LLP.

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