Is a Child Entitled to an Attorney in Immigration Court?

by Raymond G. Lahoud, Esquire

With discussion of immigration appearing frequently in the news media, and given the tenor of coverage of related issues, it’s no surprise that disagreement and debate have come to encompass nearly every corner of immigration law in some way or another. But an ongoing case that’s playing out in federal court in Seattle may be poised to take the debate surrounding the rights of children in removal proceedings to the next level.

The case centers on a lawsuit filed by the American Civil Liberties Union (ACLU) and a number of immigration rights groups, who argue that minor children have the constitutional right to an attorney in immigration court, thus ensuring a fair hearing. Officials from the U.S. Department of Justice (DOJ), however, dispute this, with one official claiming that he has been able to “[train] three-year-olds and four-year-olds in immigration law,” a process that he admits is time-consuming but which he says passes the bar for fairness.

Reaction to these claims has been mixed. While the DOJ argues that the statement was taken out of context, the ACLU attorney whose questioning elicited the response believes the official’s claim should be taken seriously, as he repeated it later in the deposition.

A question of due process

A major part of the disagreement between the two sides involves the question of whether minor children are constitutionally entitled to representation by an attorney. The DOJ argues that the distinction between procedural due process and substantive due process is at issue, claiming that children detained at the U.S. border are entitled to procedural due process—protection from indefinite detention and torture, for example—but not to substantive constitutional rights. In this way, the DOJ says, the minor children whose case is before the court differ from children who have spent significant time in the United States, who would be entitled to such rights as legal representation.

The ACLU, for its part, argues that it doesn’t matter whether a child has been in the United States for years, or if they were picked up at the border yesterday—anyone called to appear in immigration court is entitled to an attorney.

The children involved in the case are between one and 17 years of age, and came to the United States from Mexico, El Salvador, Guatemala and Honduras. The lawsuit was filed in 2014, and the judge overseeing the case has not yet issued a ruling.

Being required to appear in immigration court and faced with removal from the United States is a stressful and uncertain situation for anyone, and may be much more difficult for minor children whose understanding of the situation may not be sufficiently clear. If you have questions or concerns related to your or your child’s immigration case, seeking the counsel of an experienced and knowledgeable attorney is your best approach for achieving clarity and ensuring you’re getting the help you need. Contact the Pennsylvania deportation defense attorneys at Baurkot & Baurkot today for help.