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

I.  Introduction

A.  Purpose

This memorandum highlights international human rights law and commentary as well as potential arguments based on this law that could be utilized by U.S.-based advocates to promote a right to free legal counsel for unaccompanied and separated children navigating domestic immigration proceedings. Where relevant, the memorandum also references regional human rights law and national policies and identifies further avenues of research for advocates.

The right to counsel for these children matters in two important ways.  First, children are not competent to represent themselves in any legal proceeding, and immigration removal law and procedure is complex.  Second, research has long demonstrated that respondents in immigration court are several times more likely to gain asylum if they are represented.[1]  Under current U.S. law (Immigration and Nationality Act Sec. 292, 8 U.S.C. Sec. 1362), however, unaccompanied and separated children are not provided with counsel at government expense.  That means that they must depend on pro bono representation.  While there are major efforts underway by advocacy organizations to recruit pro bono counsel for these children,[2] a significant number of unaccompanied and separated children are not represented in their immigration removal proceedings.[3] Accordingly, advocacy organizations continue to campaign for mandated representation for this vulnerable population.  International human rights law can helpfully support that campaign.

 

B.  Structure

Section II of this memorandum introduces excerpts from international law and commentary directly or indirectly applicable to the provision of free legal counsel for unaccompanied and separated children in civil proceedings. This serves as background to the discussion in Section III on how the identified law and commentary could be utilized to support attempts to promote a right to free legal counsel for unaccompanied and separated children navigating immigration proceedings in the United States.

 

C.  Definitions

 For the purpose of this memorandum, the following definitions apply:

 §  Child: Every human being below the age of 18 years, unless under the law applicable to the child, majority is attained earlier.[4]

§  Unaccompanied children: Children (as defined above) who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so.[5]

§  Separated children: Children (as defined above) who have been separated from both parents, or from their previous legal or customary primary caregiver, but not necessarily from other relatives. Accordingly separated children may include children accompanied by other adult family members.[6]

§  Unaccompanied and separated children/child (“UASC”): This definition encapsulates the two immediately preceding definitions in their plural and singular forms, as relevant.

 

 


[1] See e.g. Andrew I. Schoenholtz & Jonathan Jacobs, The State of Asylum Representation: Ideas for Change, 16 GEO. IMMIGR. L.J. 739, 742 (2002); Jaya Ramji-Nogales, Andrew I Schoenholtz & Phillip Schrag, Refugee Roulette: Disparities in Asylum Adjudication  (NYU Press, 2009).

[2] See e.g. the Unaccompanied Children Program at the VERA Institute for Justice, Kids in Need of Defense (KIND), and the National Pro Bono Project for Children at the Catholic Legal Immigration Network Inc. (CLINIC).

[3] For example, based on correspondence with the VERA Institute on December 2, 2010, only 19% of the children who were admitted into ORR custody between April 1, 2006 and March 31, 2008 (and whose cases were concluded (while the child was released) at the IJ stage by June 20, 2008) were represented at some point in their removal proceedings.

[4] Convention on the Rights of the Child (CRC), at Article 1.

[5] Committee on the Rights of the Child, General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside Their Country of Origin (General Comment No. 6), at paragraph 7.

[6] Id. at paragraph 8.