Believe It or Not, Kids Don’t Get a Lawyer in Immigration Court

“You have the right to an attorney…If you cannot afford one, one will be provided for you at no cost.”

Everyone’s heard the Miranda rights read on TV cop shows … or maybe even in real life. The exact wording varies from state to state, but the meaning is always the same: access to a lawyer is a basic right.

Not so in immigration court. Because the legal proceedings are civil, and not criminal, the government is not obligated to provide most defendants with legal counsel. That goes for children, too.

That’s right. Children who enter the country illegally or overstay their visa can be put before a judge for “removal proceedings” — and get deported without ever talking to a lawyer.

The American Civil Liberties Union (ACLU) hopes to put an end to that. The group filed a lawsuit on Wednesday on behalf of eight families where children, ages 10-17, have been left to navigate the immigration system without a government-appointed lawyer. The ACLU hopes the case will serve as a precedent to change the standards of treatment for children in deportation proceedings.

Credit: Pedro Alvarez/Fusion

Pro-bono attorneys across the country have done an admirable job handling immigration cases involving children, but the volunteer network doesn’t always deliver. A 2009 report estimated that at least 60 percent of children in immigration proceedings are not represented by a lawyer and must appear before an immigration judge by themselves.

The ACLU’s legal argument is built on several pillars: 1) All kids— even non-U.S. citizens — have the right to due process, as established by the Fifth Amendment. That includes the right to a fair trial, and an immigration proceeding without a lawyer violates that standard, the ACLU argues; and 2) The Immigration and Nationality Act affords people in deportation proceedings “a reasonable opportunity to examine the evidence against [them.]” And how can a child adequately understand the facts of an immigration case to argue his or her defense before a judge?

Those arguments have activists hopeful that the lawsuit will be successful. Plus, there have been instances where defendants in immigration proceedings were granted lawyers. In 2013, a federal judge ordered immigration courts in three states to provide legal representation for people with serious mental disabilities.

Then there’s the court of public opinion. Is bouncing kids out of court and out of the country without access to a lawyer the American standard of justice?

A spokesperson for the Executive Office for Immigration Review (the official name for federal immigration courts) said that the office does not comment on pending litigation.

The Obama administration, however, appears to be moving in the opposite direction. The White House wants to hasten deportation proceedings of children and families without guaranteeing kids access to a lawyer.

Still, Ahilan Arulanantham, who is working on the case and a senior attorney with the ACLU’s Immigrants’ Rights Project, says the Obama administration could pull a 180 and simply fix the problem by providing undocumented kids with legal representation.

“It’s in the government’s hands, really,” Arulanantham said. “They can choose to fight the case, and it could take a number of years, or they could find a way to resolve it.”

Ted Hesson was formerly the immigration editor at Fusion, covering the issue from Washington, D.C. He also writes about drug laws and (occasionally) baseball. On the side: guitars, urban biking, and fiction.