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Just a month ago it came to our attention that a federal immigration judge gave sworn testimony that three or four year old children could understand and 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 the adjudicatory hearing of a juvenile court proceeding via the due process clause of the 14th Amendment instead of the 6th Amendment, because juvenile proceedings were deemed quasi-criminal. Justice Fortas asserted in the Gault ruling, “The juvenile needs assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it.” Essentially, counsel is necessary to navigate the complexities of law. SCOTUS’s ruling was informed, in part, by the Presidential Crime Commission, which had opined that informality present in the juvenile courts was being abused. If defense counsel were present, 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 the countries of 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 but reality.
So what about the child facing deportation? The right to counsel is granted to immigrants in removal proceedings by the 5th Amendment in upholding “fundamental fairness” in formal proceedings, but the immigrant must exercise the right (which has at times been construed as a privilege) at their own expense. Deportation is considered an infringement upon liberty, but the 6th Amendment, which provides for representation of the indigent when facing incarceration, does not extend past criminal proceedings. 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 14th 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 in the federal judge’s preposterous claims). Attorneys at organizations like ACLU and Kids in Need of Defense (KIND) have stepped up to the plate to offer pro bono services to these children, and the federal government has offered some financial assistance in this regard. These organizations have acknowledged 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 United States was reeling over its own refugee crisis, and 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.
It’s been a season or two… alright, an election cycle and counting of sensationalist news. The American public has been sound bitten to death. In this capricious cultural climate it’s impossible for any issue of substance to endure in public consciousness, especially those impacting children. The thing is, we really can’t afford to disengage from political discourse, as tempting as that may be, because too much is at stake. 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 at the House of Representatives Judiciary Committee awaiting its committee hearing. This conversation is really ours to carry and not the media’s or any single politician’s to squander. If your representative is on the Judiciary Committee a simple phone call and brief conversation might nudge the bill that much further.