immigration Practice Area

The Issue Of Unrepresented Children In Removal Proceedings Heats Up In The Ninth Circuit

The Issue Of Unrepresented Children In Removal Proceedings Heats Up In The Ninth Circuit

It seems like U.S. Immigration issues are everywhere in the news these days.  With all that swirls around about immigration, there is one issue that may be lost on most Americans – that is, there is no right to counsel in an immigration court proceeding.

This typically comes as a huge surprise to the average individual, especially those who are familiar with the phrase “If you can’t afford an attorney, one will be appointed for you by the Court”.   That is simply not so in the context of an immigration court proceeding where the respondent is not facing jail time, but something that many foreign nationals see as a fate much worse – removal from the United States.

What’s worse is that the absence of a right to counsel exists regardless of the age of the foreign national who is being threatened with removal.  In fact, there are thousands of cases involving children in immigration court proceedings.  Since most of these children are indigent, they rely on volunteer lawyers who agree to work on a pro bono basis.  Sadly, there aren’t enough volunteers to go around.  The kids who have no access to competent immigration counsel are forced to face government attorneys and immigration judges alone.

In 2014, the Transactional Records Access Clearinghouse (TRAC) reported that less than a third of children who had pending removal cases were represented by legal counsel.  The same report stated that children who had legal representation were ordered removed in 28% of cases, while children who had to represent themselves were ordered removed in 77% of cases.

The U.S. District Court in Seattle, Washington recently issued a ruling to try to put a stop to children having to represent themselves.  On June 27, 2016, the Court granted class-action status in the lawsuit, J.E.F.M. v. Lynch, which alleges that the U.S. Department of Justice, Department of Homeland Security, and Health and Human Services violate the Fifth Amendment of the Constitution and certain provisions of U.S. Immigration law by refusing to provide counsel to children involved in removal proceedings.

The class, which is estimated to constitute thousands of children, is defined as all children under the age of 18 who are involved in immigration court proceedings within the jurisdiction of the United States Court of Appeals for the Ninth Circuit on or after June 24, 2016.   The class also requires that the members be potentially eligible for asylum and/or have the potential to make a claim of U.S. citizenship, but do not have legal representation and are unable to retain private counsel.

The class-action certification has been touted as a major victory.  As Kristen Jackson, senior staff attorney at Public Counsel stated, “The court’s order recognizes the challenges that immigrant children share and it puts us closer to a day when no child will have to face an immigration judge alone.”

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