C.J.L.G. (C.J.) was thirteen years old when he escaped from Honduras, a country known for having one of the highest homicide rates in the world. He fled with his mother, Maria, after the Mara Salvatrucha gang, more commonly known as MS-13, made repeated death threats to him and his family, demanding that C.J. join the gang. Had he stayed, C.J. would have been forced to face death or join a gang that heavily recruited children to engage in drug trafficking and murder. He would likely have met the same fate as many others, like a fifteen-year-old boy who was gunned down on his way to buy cell phone minutes. Instead, C.J. and his mother decided to make the journey to the United States, hoping for freedom.
After entering the United States, border patrol agents quickly apprehended C.J. and forced him to defend himself in removal proceedings without legal representation. The immigration judge found that thirteen-year-old C.J. did not adequately allege a plausible claim for asylum relief, and thus ordered C.J. to return to Honduras. C.J. would have to pay the price for being born in one of the most violent countries in the world and for being unable to successfully navigate the labyrinth of U.S. immigration law. He would have to return to the place where his death or torture was almost certain.
Every year, thousands of immigrant children like C.J. flee to the United States to escape the extreme violence that pervades their daily lives. Within that class of immigrant children, there is a substantial subset of children that the government recognizes as particularly vulnerable, thousands of whom enter the United States every year—unaccompanied alien children (UAC). While many children like C.J. enter the country with added guidance in the form of a parent or guardian, many children enter the United States alone but share the same dangers and concerns. The United States, however, has failed to provide meaningful due process rights to any of the children who knock on its door for help.
Once immigrant children arrive at the border, border patrol agents take them to a Customs and Border Patrol (CBP) processing station to determine whether they can stay in the United States. Unless they can allege their entitlement to a form of legal relief, the government will force them to return to the dangerous places from which they fled. Although C.J. and these children have the right to appeal the decisions made, the Board of Immigration Appeals and federal circuit courts have yet to find that immigrant children are entitled to any form of government-funded, appointed counsel to assist them.
The government gives UACs certain special protections to account for their precarious circumstances, such as mandating that CBP transfer UACs to the Department of Health and Human Services (HHS) within
seventy-two hours after apprehension, and that the HHS ensure the placement of UACs with a parent or legal guardian. Despite these protections, the government has stated that even UACs are ineligible to obtain government-funded, appointed counsel. Furthermore, no court has held that UACs are entitled to appointed counsel at the government’s expense. As a result, UACs must advocate for themselves in complex immigration proceedings where they may lose, not because they are ineligible to qualify for legal relief, but because they cannot properly understand the complex laws in place.
This Note begins by addressing the immigration field as it pertains to UACs in removal proceedings. Part I explains the lack of a right to appointed counsel for UACs, the various agencies involved, and the agencies’ roles once UACs are apprehended. It describes the current rights the government guarantees to UACs in an attempt to take into account their particular vulnerabilities, both after apprehension and during removal proceedings. The Note then gives an overview of the right to appointed counsel jurisprudence, both in criminal and non-criminal proceedings, including the limited situations where courts have held that indigent defendants are entitled to appointed counsel. Part II discusses the role of the Due Process Clause in the United States and its relation to appointed counsel for minors in both criminal and civil contexts. It argues that a similar due process analysis should be made in the immigration context for UACs in regard to requiring government-funded, court-appointed counsel. In doing so, this Note examines the immigration court system, its severe backlogs and pitfalls, and the disparity in success rates between represented and unrepresented minors in immigration proceedings. Lastly, Part III proposes an exception to the Immigration and Nationality Act (INA) to include UACs as entitled to government-funded, appointed counsel to avoid violating the Fifth Amendment of the U.S. Constitution.
I. BACKGROUND
A. The 2014 Surge in UACs
In 2014, 68,541 UACs were apprehended at United States borders, compared to the 16,607 UACs apprehended in 2011. In 2017 (the most recently measured fiscal year), 41,546 UACs were apprehended at United States borders. One of the main reasons for the 2014 surge in the arrival of children was the rise in gang violence and international criminal organizations, particularly in Central America. Once apprehended, UACs must navigate a labyrinth of immigration laws with little to no legal aid, despite the major consequences that can occur if these children are forced to return to their home countries.
B. The Lack of a Right to Appointed Counsel
Although it has long been held that immigrants in the United States are entitled to retain private counsel, there is no categorical right to appointed counsel at the government’s expense. In 1952, Congress enacted the INA. The INA is a comprehensive body of law that codified many of the immigration statutes in place prior to 1952 and reorganized the overall structure of immigration law in the United States. In particular, the INA currently provides that “the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose.”
The Sixth Amendment grants certain constitutional protections to criminal defendants, including the right to appointed counsel. However, it does not give UACs, or immigrants as a whole, any protection, because removal has always been classified as a civil rather than a criminal proceeding. In non-criminal proceedings, the Supreme Court has not found a right to government-funded counsel except in some limited circumstances. For children, the Homeland Security Act of 2002 states that the Office of Refugee Resettlement must ensure that qualified and independent legal counsel is appointed, in a timely manner, to represent each child’s interests. However, the Homeland Security Act does not mandate that children be appointed counsel at the government’s expense. Consequently, UACs must fend for themselves in removal proceedings, and argue against the government’s attorneys in front of immigration judges. If UACs lose, they will not go to jail, but they will return to their home countries, where they will live every day fearing for their lives—a punishment that many UACs consider far worse than being sent to a jail in the United States.
C. Apprehension
Before removal, UACs encounter multiple agencies within the federal government whose decisions determine the future of thousands of children every year. These agencies include Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), United States Citizenship and Immigration Services (USCIS), the Executive Office for Immigration Review (EOIR), the Office of Refugee Resettlement Division of Unaccompanied Children’s Services (ORR/DUCS), and the United States Department of State.
After being apprehended, UACs are first taken to a CBP processing station, where they are kept in cells while being processed to determine whether they are from a contiguous country, whether they are a victim of trafficking, whether they expressed a fear of persecution, or whether they want to return to their home country voluntarily. CBP agents make these determinations despite having no training on how to communicate effectively with UACs, particularly those who may have suffered from abuse.
D. UACs’ Rights Under the Flores Settlement Agreement
If UACs pass the initial CBP screening process, they are then transferred to ORR/DUCS within seventy-two hours, as required by the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). The TVPRA was enacted following a stipulated settlement agreement to ensure the care and placement of UACs in federal custody. To effectuate the placement of UACs, ORR/DUCS contracts with state-licensed providers who offer 106 shelters and foster care programs that can house around 8,000 children in ten different states. These centers provide a place for these children to shower, sleep, eat, make phone calls, and receive medical care, counseling, education, and legal services. Legal service providers conduct in-person presentations on the legal rights the children have and conduct individual screenings with children within the first ten days of their arrival to the shelter to determine whether any are eligible for legal relief and to make referrals to pro bono attorneys.
ORR/DUCS is responsible for placing the UAC with an adult sponsor in the United States. Sponsors are typically the parents, legal guardians, or extended relatives of the child, and are reunified with the child only after a strict approval process that now includes subjecting all household members to background checks, including fingerprinting, to ensure that the sponsors have no criminal backgrounds.
Although the current Administration argues that the background checks are to protect the children, it often shares adults’ fingerprints with the Department of Homeland Security (DHS), which can enable DHS to locate undocumented immigrants already in the United States. Since many of the potential sponsors are those living without status in the United States, many of them are deterred from applying for reunification in fear of being personally placed in removal proceedings and deported. In fiscal year 2016, ORR/DUCS was able to reunite about ninety percent of UACs with approved sponsors in an average of thirty-four days. However, due to the delays caused by the heightened standards, the average amount of time that it now takes ORR/DUCS to reunify UACs with approved sponsors is fifty-nine days.
While waiting to be reunified, UACs are required to stay in ORR/DUCS-contracted facilities. One such facility, “tent city” in Tornillo, Texas, holds about 1,500 children, many of whom report suffering from anxiety, depression, suicidal ideation, and other mental health issues, due to their long-term detention coupled with the trauma that most of them already experienced in their home countries. This extensive detention period has resulted in a class action suit being filed on behalf of thousands of immigrant children, alleging that their constitutional rights have been violated.
E. Removal Process
While in ORR/DUCS custody, UACs undergo removal proceedings in front of the EOIR. The EOIR is housed in the Department of Justice and contains immigration courts overseen by immigration judges, and the Board of Immigration Appeals (BIA), an administrative appeals body that hears limited appeals from immigration courts. UACs can then petition for their BIA decisions to be reviewed by a U.S. court of appeals.
During a removal proceeding, an immigration judge will determine whether the UAC may remain in the United States due to the entitlement of some legal relief, or whether the UAC must be removed. In order to start a removal proceeding, a DHS official must first file a notice to appear, listing charges against the UAC. The immigration judge then decides whether those charges should be sustained based on whether they state a valid ground for removal. If the immigration judge sustains the charges, then the UAC has an opportunity to apply for legal relief, or be removed from the United States. If the immigration judge grants the application for relief, the UAC can stay in the United States.
F. Judicial “Proposals” to the Appointed Counsel Problem
The judicial branch has never held that UACs are entitled to government-funded counsel in their removal proceedings. In general, the Supreme Court has found no categorical right to counsel in civil cases under either the Fifth, Sixth, or Fourteenth Amendments. In cases that have been filed seeking appointed counsel, parties contend that the lack of appointed counsel violates the Due Process Clause of the Fifth Amendment. The Supreme Court established three factors in Mathews v. Eldridge that dictate whether one’s right to due process has been violated: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through
the procedures used and the probable value, if any, of additional procedural safeguards; and (3) the government’s interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail. These three factors must be balanced, and the analysis requires flexibility and procedural protections in light of the facts and circumstances at hand.
In the specific context of appointed counsel in non-criminal cases, the Supreme Court added another consideration to the due process analysis in Lassiter v. Department of Social Services. Lassiter involved a failure to appoint counsel for indigent parents in a termination of parental rights proceeding. The Court held that there is a presumption that indigent defendants only have a right to appointed counsel when they may be deprived of their physical liberty. Although the Court did not explicitly define “physical liberty,” it did note in dicta that criminal precedents have established that there is a right to appointed counsel when the indigent defendant may be incarcerated, no matter the term of the sentence. The Court further explained that in civil cases, the defendant’s “interest in personal freedom” is important in determining whether there is a right to appointed counsel.
The Court looked at an additional right-to-counsel case recently in Turner v. Rogers, where a parent, Turner, repeatedly failed to pay child support and was sentenced to two separate sentences of ninety days and six months. When Turner was at a civil contempt hearing for his arrears, the judge found Turner in willful contempt and sentenced him to twelve months in prison. During the civil contempt proceeding, neither Turner nor the other parent were represented by counsel. The Supreme Court held that the Fourteenth Amendment did not automatically require states to provide counsel at civil contempt proceedings even if there may be a threat of incarceration. However, the Court limited its holding to cases where the opposing parent was also unrepresented by counsel, and where the state provided adequate procedural safeguards, such as notice and a fair opportunity to present and dispute relevant information. Turner has become significant in the due process right-to-counsel jurisprudence because it constrains the Lassiter deprivation of physical liberty analysis by indicating that, even where there is a threatened deprivation of physical liberty, there will not always be a violation of due process.
There have been some limited instances, however, where courts found a right to counsel in non-criminal cases. The Supreme Court’s first recognition of such a right was in In re Gault, a juvenile delinquency case. In Gault, the Court held that due process requires that, if the delinquency proceeding would result in commitment to an institution, and thus curtailment of the juvenile’s freedom, the child must be notified of the right to retain counsel or the right to receive appointed counsel if the child is unable to afford one. In termination of parental right hearings, some courts have held that children have a constitutional right to appointed counsel in order to protect the children’s interests in their health and well-being, as well as in their family relationships.
In the immigration context, courts recognize that UACs have constitutional due process rights despite lacking legal status in the United States. Courts have thus derived certain rights for UACs under the Fifth Amendment that are available to criminal defendants under the Sixth Amendment, such as the right to counsel (at personal expense), the right to present evidence and cross-examine witnesses, and the right to have a decision before a neutral decisionmaker made based upon substantial evidence. However, courts have also made clear that the right to appointed counsel is not required to comport with the Due Process Clause because the other procedural safeguards already ensure a fair hearing.
The limited circumstances in which a right to representation, though not necessarily by an attorney, has been found in immigration proceedings are in cases involving mentally incompetent immigrants. However, instead of finding that there was a due process violation, the court in Franco-Gonzales v. Holder held that mentally incompetent immigrants were entitled to “qualified representation” under the Rehabilitation Act. In doing so, the court avoided addressing the constitutional question, though some scholars have argued that the court could have found a right to appointed counsel even under the Fifth Amendment.
As the case law indicates, there has been little hope thus far that UACs will obtain a categorical right to government-funded, appointed counsel. In the American Civil Liberties Union case involving C.J., a three-judge panel in the Ninth Circuit heard C.J.’s appeal in January 2018, in which C.J. alleged that the lack of court-appointed counsel violated his due process rights. The panel, however, found that C.J. was not entitled to any appointed counsel, and that his removal proceeding did not constitute a violation of due process. The Ninth Circuit later granted a petition to rehear the case en banc. The en banc court held that the immigration judge failed to advise C.J. regarding his eligibility for Special Immigrant Juvenile status (SIJ status), remanding for a new hearing. However, the court declined to address the appointment of counsel issue, noting that C.J. would be represented by counsel in future administrative proceedings.
II. ANALYSIS
A. The Due Process Clause
Courts have failed to find that a categorical right to government-funded, appointed counsel exists in any proceeding other than criminal proceedings. The courts have reasoned that: (1) the Sixth Amendment right to appointed counsel extends only to proceedings where the defendant is subject to a deprivation of physical liberty; and (2) the Fifth Amendment Due Process Clause requires adequate procedural protections as the specific circumstances of the case demand, which does not necessarily mean appointed counsel in all situations. Thus, in removal proceedings, UACs (and immigrants generally) do not have the right to counsel under the Sixth Amendment because deportation has never been recognized as a criminal punishment. Under the Fifth Amendment, courts recognize that immigrants do have certain due process rights—the right to counsel at no expense to the government, which is reiterated in the INA, and the right to a “full and fair hearing,” where the immigrant petitioner must have the opportunity to present evidence and testimony on their behalf, cross-examine witnesses, and examine and object to adverse evidence.
Courts, however, have not yet had a chance to consider UACs, a particular subset of immigrants in a uniquely vulnerable situation, and who are already given special accommodations outside of removal proceedings. The Due Process Clause jurisprudence requires more than the right to counsel at personal expense for UACs. Prior case law suggests that additional procedural safeguards, namely appointed counsel at the government’s expense, must be given to UACs during their removal proceedings. Therefore, as it currently stands, the INA, as applied to UACs, is unconstitutional if it cannot be read to mandate that appointed counsel be provided to UACs at the government’s expense. There would otherwise be a violation of the Due Process Clause of the Fifth Amendment.
Even if the Sixth Amendment does not come into play because deportations are considered civil and not criminal in nature, the Due Process Clause analysis under the Fifth Amendment in the context of UACs should adopt the reasoning supporting the appointment of counsel for indigent defendants in criminal proceedings within our legal system. The drastic conditions associated with deportation can be analogized to incarceration—both result in a loss of freedom and liberty. In addition, the analysis must take into account the reasoning that courts applied in the limited non-criminal contexts where appointed counsel was recognized, particularly in juvenile delinquency and termination of parental rights cases.
1. Mathews Balancing Test
a. Private Interests
The first factor that must be considered in determining whether UACs are entitled to government-funded, appointed counsel under the Due Process Clause is the private interests that will be affected by the official action. In removal proceedings, the most severe consequence that UACs could face is deportation. UACs are often fleeing from extreme violence in their countries when they seek help at the U.S. borders. Notably, UACs are fleeing countries in Central America that are known for being the most violent in the world. Gangs relentlessly terrorize children and their families, threatening to kill them if they refuse to join and aid in drug trafficking and murder. UACs are fighting against deportation in their removal proceedings, so a significant interest they have at stake, and likely the most significant interest, is their interest in not being deported. Furthermore, although courts do not view deportation in the same light as criminal punishment or incarceration, courts have recognized the extreme consequences of deportation and how much it could affect the lives of immigrants.
The Supreme Court in Gault emphasized that children must be given the right to appointed counsel if they are at risk of losing their liberty, with no regard to whether the proceeding is civil or criminal. The act of deportation may itself not be as severe as being incarcerated, but the realities of deportation must be taken into account. When the government deports UACs, it is more than likely they are sending them back to extreme violence, torture, or death. In cases where courts have conducted the due process analysis, the courts have found that this first factor weighs in favor of the immigrant, even in cases involving children who were accompanied.
b. Risk of Erroneous Deprivation
The second factor determines whether there is a risk of erroneous deprivation of the immigrant’s interests through the procedures used, and whether there is any probable value of additional procedural safeguards. This factor is at the heart of the due process analysis and at the heart of what it means for a defendant to receive a fundamentally fair hearing.
UACs currently have certain procedural safeguards that are guaranteed in their removal proceedings, such as the right to appointed counsel at their own expense, the opportunity to present evidence and testimony, and the opportunity to cross-examine witnesses. Furthermore, the immigration judge is tasked with developing the record by questioning the immigrant child. What is key in this factor of the Mathews test is considering whether those procedural safeguards can ever lead to a risk of erroneous deprivation of the UAC’s interest in finding legal relief from deportation and, if so, whether additional procedural safeguards can add any probable value to protecting that private interest.
In C.J.’s case, C.J. was presented with the opportunity to retain counsel or have his mother represent him in proceedings. The mother (as his representative) was given the opportunity to present evidence and testimony that C.J. should be eligible for asylum. There is a smaller risk of erroneous deprivation because there is an assumption that C.J.’s mother, as an adult, has fully developed her cognitive abilities; therefore, she can better understand immigration laws and defend her child. However, in contrast, the risk of an erroneous deprivation of UACs’ interests is particularly evident given the unique nature of the situation in which UACs exist. These children have fled from violent countries, many of them suffering from mental illnesses as a result of that violence or as a result of prolonged detention. They are forced to understand the complex set of laws that would grant them relief and communicate their entitlement for such relief in a foreign language. Unlike C.J., UACs are alone when they are apprehended at the border, and alone when they appear before an immigration judge, further increasing the risk of an erroneous deprivation of the child’s interests.
The judicial branch acknowledges that there can be certain classes of immigrants who should be categorically entitled to some form of mandatory representation. In Franco-Gonzales v. Holder, the federal district court determined that the safeguards provided by the INA were insufficient for mentally incompetent aliens due to their inability to fully comprehend the immigration proceedings. Similarly, most UACs are not only children who are still developing their cognitive abilities, but are also, more often than not, individuals suffering from severe trauma and mental health issues. Even if there are UACs who do not suffer from mental illnesses or trauma, the risk of erroneous deprivation for those who do have those issues is far too great to ignore.
Although one of the current procedural safeguards in place is the right to counsel at private expense, a national study of access to counsel in 1.2 million removal cases found that only thirty-seven percent of immigrants secured legal representation in their immigration proceedings between 2007 and 2012. Sixty-three percent of immigrants went to court without any legal representation. Only fourteen percent of detained immigrants secured legal counsel, even though those detained immigrants who were represented were four times more likely to be released from detention. Represented immigrants in detention were also twice as likely than unrepresented immigrants in detention to obtain relief. Additionally, the study found that obtaining counsel was most difficult in small cities of less than 50,000 people, indicated by a representation rate of eleven percent, whereas large cities had a representation rate of forty-seven percent. Analyzing this data, the American Immigration Council found that if the detained immigrant was represented by an attorney early in the process, there was an increased likelihood that the immigrant would be released from detention. This suggests that there is an argument for the government to promote access to counsel for detained immigrants given that detention costs the government billions every year. In cases of both detained and non-detained immigrants, those with appointed counsel had higher success rates than those without. Furthermore, specifically for removal proceedings, the American Immigration Council found that represented immigrants were far more likely to pursue relief—and prevail in that pursuit—than unrepresented immigrants in the same proceedings.
As of fiscal year 2018, 496,129 children are in removal proceedings, and more than half of them are unrepresented by legal counsel. Children represented by lawyers have much greater success in those proceedings than those children who were not represented. In fact, in cases where the child was represented, the court allowed the child to remain in the United States almost half of the time. In cases where the child faced the proceeding alone, the court ordered the removal of the child seventy-seven percent of the time; the child was allowed to remain only ten percent of the time. These results suggest that the lack of government-funded counsel can have a serious impact on immigrants’ ability to have a meaningful appearance at their immigration hearings.
Although some scholars argue that immigrants are not prevented from receiving a fair hearing because they are entitled to retain counsel under the INA, the data suggests that, even with that right, far too many immigrants are going to court unrepresented. Following the Homeland Security Act of 2002’s directive to ensure that each child has legal representation, ORR/DUCS contracted with the Vera Institute of Justice to find ways to provide legal representation for UACs. The Vera Institute oversees the Unaccompanied Children Program, a program with seventeen nonprofit agencies around the United States that provide legal assistance to UACs, such as “Know Your Rights” presentations at the detention centers, individual screenings with each child to determine whether the child is eligible for legal relief, and referrals to pro bono attorneys. ORR/DUCS also provides legal information and pro bono referrals through the Legal Orientation Program.
In addition to these ORR/DUCS-led initiatives, UACs can also receive legal aid through other nonprofit organizations, pro bono projects, and law school clinics. Although these programs have been found to increase the percentage of represented UACs, more than half of them are still unrepresented in immigration proceedings. For example, the nonprofit organizations have limited resources and lack adequate funding, which can be partly attributed to the strict restrictions placed as a result of receiving funding from the Legal Services Corporation. Pro bono programs are also unhelpful because many are part of large law firms with attorneys who have little experience in immigration law, an inadequacy that even federal circuit judges have noticed. There are further logistical problems due to the UACs’ placement in often remote detention facilities, far away from major cities where large law firms can be found.
On the other hand, law school clinics consist of eager law students who are able to travel to various detention centers due to the diverse locations of law schools around the country, and give specialized attention to UACs. However, law school clinics are still limited in capacity, with only 120 clinics in the country. Law students also have little time to provide all the legal assistance that UACs need. Furthermore, the introduction of expedited removal proceedings after the 2014 surge has made it more difficult for UACs to secure legal representation due to the shorter period of time before their hearings. Thus, the risk of erroneous deprivation of the UACs’ interests is particularly high given the systemic barriers in place that prevent UACs from obtaining legal representation.
In addition, although immigration judges are supposed to be more patient with UACs due to their unique situation, and therefore carefully develop the record, immigration judges may still be prevented from doing so for two reasons: (1) immigration judges must be neutral decisionmakers, but somehow also act as advocates for the UACs—a role that may lead to complications; and (2) immigration judges operate within a severely backlogged system that hinders them from doing all they can to help the UACs establish entitlement to legal relief.
The U.S. immigration court system is currently handling its largest caseload ever. At the end of May 2018, there were 700,000 removal cases pending decision in immigration courts, waiting an average of 1,071 days, or nearly three years, for their day in court. Studies have found that the immigration court system is severely backlogged and lacks adequate resources and funds to function properly. One reason for such immense backlog is the resource imbalance between the enforcement agencies, namely CBP and ICE, and the immigration courts. The budget for CBP and ICE increased from $4.5 billion in 2002 to $20.1 billion in 2016, amounting to a nearly 400% increase. Immigration courts, by contrast, only had a seventy-four percent increase from 2002 to 2016. Consequently, there are too few immigration judges to efficiently and effectively handle the thousands of cases being brought before them, which the American Bar Association Commission on Immigration concluded led to difficulties in securing pro bono attorneys for immigrants, and hence a decreased likelihood of those immigrant applicants securing legal relief. Thus, even with the current procedural safeguards in place, there is a high risk that UACs may be erroneously deprived of their interest in not being deported, due to both the unique nature of UACs and the current condition of the immigration court system.
The problem with the current procedures in place to comport with the Due Process Clause is that UACs cannot adequately present evidence or testimony, cross-examine witnesses, or even answer questions accurately and strategically when the immigration judge attempts to develop the record and probe UACs about possible forms of relief to which they might be entitled. The immigration judge also cannot act in dual roles—both as an advocate for the child and as a neutral decisionmaker. Furthermore, all UACs do not have the resources to retain private counsel, nor is it easy to obtain pro bono attorneys. Thus, these children need a categorical right to appointed counsel to ensure that their due process rights are not being violated. Given the success rates that immigrant children with legal representation obtain in their removal proceedings, there is probable value in such additional safeguards.
c. Government’s Interests
The third factor of the due process analysis considers the government’s interests, including the fiscal and administrative burdens that the additional procedural safeguards may present. Opponents of government-funded counsel for UACs predominately rely on this factor, because the cost of appointed counsel at the government’s expense for the nearly 500,000 children in removal proceedings could be a burdensome amount.
In actuality, studies have shown that appointed counsel may make immigration courts more efficient. In 2011, immigration judges were surveyed and almost unanimously agreed that they could adjudicate cases “more efficiently and quickly” when a competent lawyer represented the respondent. The main reason for the increase in efficiency is that cases move expeditiously when lawyers are involved, and this, in turn, will help with the immigration backlog. Therefore, though the direct cost of providing attorneys to all UACs may be high, those costs are arguably offset by the more efficient adjudication of cases due to competent lawyers, which will help resolve the immense backlog in immigration courts.
After considering the three factors and weighing them against each other, the Mathews test would require additional or substitute safeguards in order to comport with the Due Process Clause if the factors weighed in favor of the defendant. If the factors weighed in favor of the government, the Mathews test would not require additional or substitute safeguards. Here, the first and second factors both appear to weigh in favor of the UAC. The third factor is the highest burden to overcome, but it does not appear to be an insurmountable burden in light of studies considering the increase in efficiency due to the assistance of counsel. Under these considerations, the Due Process Clause would thus demand that UACs be given appointed counsel at the government’s expense. In most due process cases, the analysis would end here. However, in the appointed counsel context, the Supreme Court takes a heightened look at the first factor—the private interests at stake—and assigns it a greater weight than the other factors based on whether there is a deprivation of physical liberty.
d. Deprivation of Physical Liberty: Lassiter & Turner Analysis
In Lassiter, the Court recognized a presumption that indigent defendants have a right to appointed counsel when they may be deprived of their physical liberty. Because there was a deprivation of physical liberty, the Court appeared to give the individual’s private interest at stake significant weight over the other two Mathews factors, suggesting that the individual’s private interests would always outweigh the other factors where there is a deprivation of physical liberty. Although the Lassiter presumption was in the context of a termination of parental rights proceeding, judges and scholars have interpreted the case to apply broadly to the right to counsel jurisprudence, including in the immigration context. Lassiter seemed to have established a categorical right to appointed counsel for any defendant facing a deprivation of physical liberty; therefore, scholars believed that the new presumption would pave the way for such a categorical right to apply to immigrants, since deportation is widely classified as a deprivation of physical liberty. However, the Turner Court refined the Lassiter presumption in right to counsel cases and held that the focus of the due process analysis is whether adequate procedural safeguards are in place, not whether there is a threatened deprivation of physical liberty. Even though there may be a deprivation of physical liberty, there may not be a due process violation because it does not always outweigh the other two factors. Turner thus seemed to be putting additional emphasis on the second factor of the Mathews test.
Despite the additional requirements that courts have put in place for there to be appointed counsel, UACs can easily overcome the courts’ concerns in both Lassiter and Turner. The Lassiter presumption depends on the deprivation of a physical liberty. UACs can argue two ways in which they are being deprived of their physical liberty, particularly since Lassiter never defines what “physical” liberty entails. First, UACs can assert that they face a deprivation of their physical liberty in removal proceedings because deportation can cost them their lives—a significant liberty interest—or their freedom. Opponents of government-funded counsel could argue that the government is not creating the deprivation of a physical liberty, a requirement that could be construed from Lassiter, if read narrowly. Rather, the government is merely ordering that the UACs return to their home countries, and the concept of deportation itself is not inherently dangerous to the lives of those who are ordered to return. The gangs that exist in those countries and the governments that are unwilling or incapable of helping are the ones who create the dangers that make deportation a serious consequence for UACs. However, although the United States government does not directly create the dangers that UACs may face on deportation, the United States has been directly linked to the rise in gang violence that occurs in those countries and the political instability that affects those governments. Moreover, the right to appointed counsel jurisprudence seems to expand broadly when children are involved. Thus, a broad reading of Lassiter could be that the government does not need to directly create the deprivation of physical liberty; there only needs to be some deprivation of physical liberty due to the consequences of the proceedings. Even if the government does need to create the deprivation of physical liberty, the UACs have a second argument: an unsuccessful or prolonged removal proceeding can result in more detention time, which can be considered similar to being placed in jail.
In terms of Turner, which re-emphasizes the second Mathews factor, UACs can overcome this challenge because the second factor weighs in favor of the UACs. Furthermore, UACs present an even stronger case for appointed counsel under Turner because the UACs’ opposing party, the government, is represented by lawyers. In contrast, both parties in Turner were unrepresented, a key fact on which the Turner Court’s decision turned. Under the Mathews three-part test and the Lassiter and Turner glosses, UACs must be given government-funded, court-appointed counsel in order to satisfy the Due Process Clause of the Fifth Amendment.
III. PROPOSAL
This Note proposes that the INA, as it currently stands, should be amended to include an exception for UACs. In light of appointed counsel jurisprudence in criminal and civil contexts and jurisprudence addressing the mental competency of minors, the INA must be amended in order to be constitutional and comport with the Fifth Amendment’s Due Process Clause. Specifically, the proposed INA amendment should include a provision like the one that follows, which articulates that UACs are entitled to government-funded, court-appointed counsel:
The person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose, with an exception for unaccompanied alien children who shall have the privilege of being represented by government-funded, court-appointed counsel.
In order for children to be adequately represented, especially when it comes to a decision that has a major effect on their lives, they must be entitled to government-funded counsel. The judicial branch has been hesitant to find congressional acts and statutes unconstitutional when they pertain to the immigration context, primarily due to the Plenary Power Doctrine. Therefore, the most effective and quickest solution to help UACs, whose problems are piling up each day that goes by, is to amend the INA to include an exception for this vulnerable class of immigrant children.
The biggest hurdle to overcome, so that this amendment can be meaningfully implemented, is the funding. If this amendment is to be effectuated, the feasibility of providing appointed counsel for UACs must be shown. In fiscal year 2018, there were 496,129 children in removal proceedings, and only a small portion of those children (50,036) were unaccompanied. In comparison to criminal defendants that receive appointed counsel, pro se UACs constitute only about 0.1% of the annual Gideon case load.
Despite any high costs associated with providing lawyers, the costs of immigration proceedings in general appear to decrease with the presence of lawyers. Therefore, a more efficient system with appointed counsel might eventually reduce costs all around for both the government and UACs. In addition, the costs to house children in temporary detention facilities is about $775 per person per night. With an average of fifty-nine days that children now stay in detention facilities, the government would pay about $45,725 per child. The Tornillo detention facility holds about 1,500 children. For those 1,500 children, the government would pay $1,162,500 per day and $68,587,500 for fifty-nine days. In contrast, C.J.’s mother, Maria, reported that the private attorney she had contacted would have cost $6,500. If the government provides lawyers with similar price ranges to UACs, the cost for the 1,500 children would be $9,750,000—a substantially lower cost. However, even if the amount required to fund such an exception is high, the Supreme Court has held that, while the government’s fiscal interest is important, there are situations where it might not outweigh certain private interests.
CONCLUSION
Hundreds of thousands of UACs flee extreme violence and come to the United States seeking something they never had in their home countries—a chance to be free, a chance to be regular children without fear of death or torture. Most of the time, these children are eligible to qualify for some form of legal relief in removal proceedings. Yet, they are never given a sufficient opportunity to do so because they cannot afford to hire an attorney, there is a scarcity of pro bono attorneys in their area, and immigration judges cannot act as both an advocate and a neutral decisionmaker. Thus, the procedural protections that UACs currently have in place are inadequate to give UACs a full and fair hearing as required under the Due Process Clause of the Fifth Amendment. Analyzing the UAC’s due process rights from their unique circumstances under the Mathews test and the Lassiter and Turner glosses guarantees a categorical right to appointed counsel as a necessary solution to ensuring comportment with due process. This Note thus proposes an amendment to the INA to include an exception for UACs to be appointed counsel at the government’s expense in order for the INA to be constitutional under the Fifth Amendment.
