These Kids are Expected to Represent Themselves in Court!?

April 24, 2018

I’m a third year law student at Georgetown. In my final semester, I decided to participate in the Federal Legislation Clinic. The Clinic assists KIND in its advocacy efforts for unaccompanied children who have escaped dangers in their home country and made their way to the United States alone. While I have read many stories about the horrible conditions that children are fleeing in order to seek protection in the United States, there is one statistic that strikes an exceptionally strong chord with me:

More than 50 percent of the unaccompanied migrant children who have come alone to the United States since 2014 do not have attorneys to represent them in their deportation proceedings.
As a human being, but particularly as a law student, I struggle to wrap my head around this statistic and reality. I have spent countless hours over the past three years studying our legal system and how to interpret the law. And yet, just the thought of testifying, let alone representing someone else in court, makes me feel, at the very least, uneasy. (If I am being more honest with myself, overwhelmed.)

I cannot begin to imagine how these kids feel navigating the complicated U.S. immigration system, and having to prove their case in court, alone. These kids have just escaped horrible conditions in their home countries, are still in the early years of their education, may not speak English, and are at a higher risk for suffering with symptoms of Post-Traumatic Stress Disorder, which makes it difficult for them to “relive” the past trauma when telling their stories and need for protection.

As one 15-year-old boy’s story suggests, some children are extremely afraid of making a mistake in front of the immigration judge. This fear often inhibits them from effectively telling their stories. And if the kids are not able to tell their stories, they could be returned to their home country where many of them face grave risk of great harm, or even death (from, for example, gang violence).

I have a tough time understanding why we do not provide these kids with legal representation. Counsel can help kids navigate a complicated system with which they are unfamiliar, uncover unaccompanied children’s stories and the reasons they need protection, and improve the efficiency of a backlogged immigration system by weeding out non-legitimate claims so that asylum officers and immigration courts can devote their time to hearing the legitimate ones. Seemingly recognizing these benefits, other legal contexts in the U.S. involving children—such as child welfare proceedings and juvenile delinquency proceedings—ensure that the children are not forced to represent themselves against a government lawyer.

In addition to not guaranteeing legal representation for unaccompanied children, the Justice Department recently issued new guidelines in a memo that eliminate certain protections for ensuring that these children feel comfortable in immigration court. For example, the memo removes suggestions contained in 2007 guidelines on how to conduct “child-sensitive questioning”. The memo also warns judges to be skeptical of unaccompanied kids’ cases for protection. Therefore, not only are the kids not guaranteed lawyers, the DOJ has just made it harder for these kids to advocate for themselves in court.

Without legal representation or special court procedures that take into account the age and vulnerability of unaccompanied children, these kids are not being given a fair opportunity to tell their story. Indeed, statistics from a January 2017 report suggest that unaccompanied children who do not have counsel are much more likely to be ordered removed (meaning they are not allowed to remain in the U.S.) than those who have legal representation.

I am heartened by the introduction last month in the Senate of The Fair Day in Court for Kids Act by Senator Mazie Hirono, along with 12 co-sponsors, which would ensure that all unaccompanied children have attorneys in their immigration proceedings. Representative Zoe Lofgren introduced the House version of the bill in 2017.

In law school, we study many issues that are not black or white, but rather shades of grey. To me, providing unaccompanied kids with counsel is not one of those complicated grey issues. Consistent with our basic values—moral and legal—we owe these kids a fair chance in court, which requires access to legal representation.

Ross Silverberg is in his final year at Georgetown Law. He participates in the Federal Legislation Clinic at Georgetown, which assists KIND in its advocacy efforts for unaccompanied children.