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An International Human Right to Free Legal Counsel for Unaccompanied and Separated Children in U.S. Immigration Proceedings

D. DETAINED UASC HAVE A RIGHT TO FREE COUNSEL

The three arguments discussed in the preceding sections could assist in providing a right to free legal counsel for all UASC navigating immigration proceedings in the United States. A narrower argument that is also open to advocates concerns the promotion of a right to free counsel for detained UASC.

In this regard, the explicit reference to prompt legal assistance for detained children in Article 37(d) when combined with the Committee’s interpretation that Article 37(d) relates to prompt and free legal assistance could be utilized by advocates to campaign for a right to free legal assistance for all UASC in U.S. custody.

Under this argument, advocates should utilize, the Committee’s liberal interpretation of deprivation of liberty, which indicates “that the rights of a child deprived of his/her liberty, as recognized in the Convention, apply with respect to children… placed in institutions for the purposes of care, protection or treatment, including… child protection or immigration institutions.”[1] This interpretation arguably includes not only children in DHS and DHS-contracted detention facilities, but also the much larger number of UASC who have been placed in facilities contracted by the Office of Refugee Resettlement/Health and Human Services for the purposes of care and protection.

In light of the near universal ratification of the CRC, a campaign for a right to free legal counsel for detained UASC may benefit from an examination of State practice with regard to Article 37(d). A useful starting point for this analysis will include State Party reports submitted to the Committee, followed by a review of national law and policies. Such an examination may highlight the extent to which there is scope to argue that the requirements under Article 37(d), particularly as interpreted by the Committee, have become customary international law. In this regard, attention should be paid to European countries, which have experienced a pronounced increase in the migration of UASC in recent times.

After determining which States have implemented laws consistent with Article 37(d) of the CRC, it may also be valuable to undertake background research on efforts leading to the implementation of the relevant national laws in those States. This may highlight advocacy and campaign lessons for U.S.-based advocates. In this regard, a useful starting point would be Sweden, which requires public counsel to be appointed for children held in detention if they do not have a custodian in the country.[2]

 

 


[1] Report of the Committee on the Rights of the Child, Sixty-third Session, Supp. 41,  at 55, footnote a.

[2] Aliens Act, Ch. 18, Sec. 1, available at http://www.sweden.gov.se/content/1/c6/06/61/22/bfb61014.pdf.