Picture this: frightened little girls and boys clutching dolls or toy trucks standing amidst a somber courtroom full of hardened immigration lawyers. Most, if not all of these kids have not even begun grade school yet and are still so short that they “could barely see over the table to the microphone,” as Senate Minority Leader Harry Reid (D-NV) puts it. At such hearings, children are in way over their tiny heads, unable to grasp any the frenzy that surrounds them.
“Under current U.S. law, there is no right to appointed counsel in non-criminal immigration removal proceedings, even if the person in question is a child. Imagine that,” says Reid. Basically, children charged with violating immigration laws have no right to appointed counsel, even though the government is represented by Department of Homeland Security attorneys.
This sort of injustice is no doubt hard to imagine, especially coming from a country that seems to put value in due process. When it comes to kids, the stakes are even greater, since children face the same types of immigration charges as adults, ranging from entering the country illegally to overstaying their visas. However, most of these three or four-year-olds cannot speak English and would need government-provided interpreters. Many are forced to fend for themselves, with 42 percent of the more than 20,000 unaccompanied children involved in deportation proceedings completed between July 2014 and late December having gained no right to an attorney or anything else, according to Justice Department figures.
And despite recent claims by a senior Justice Department official that toddlers can learn immigration law well enough to represent themselves in court, the fact of the matter is, these children really are just that: young kids who can be more than easily be tripped up by judges questioning when they arrived in the United States or whether they had faced persecution in their home countries.
“These children should not become pawns in some larger immigration debate. They are, by and large, victims of terrible violence. They come seeking help and protection because we are a great nation with a long history of protecting those who cannot protect themselves. We must stand with these children, not use them in political games,” says Senator Patrick Leahy of Vermont.
Well, it seems that there may be some hope for immigration court-bound children after all, with Reid and Leahy’s introduction of ‘The Fair Day in Court for Kids Act’ earlier last month. Along with help from Senators Dick Durbin (D-IL), Al Franken (D-MN), Mazie Hirono (D-HI), and Patty Murray (D-WA), lawmakers have taken matters into their own hands by finally offering unaccompanied minors such as this one a fair’chance during immigration court proceedings.
The act, S. 2540, will ensure that vulnerable individuals have access to an attorney and a fair legal process when facing deportation decisions. The bill will also require DHS to guarantee that immigrants at detention and border facilities are able to access legal counsel, case management services, and legal orientation programs to further understand their rights as detainees. In an effort to improve accountability, it would further require DHS to report how many qualifying individuals actually received counsel. With these new measures, the hope is that many of the oftentimes very credible claims of asylum seekers are heard, not ignored.
When faced with a life-or-death deportation decision, it is important to remember that unaccompanied minors who have lawyers are much better equipped to navigate “through the U.S. immigration law system, which has been compared to IRS rules in its complexity,” according to NPR. Unfortunately, only about one-third of children are able to secure an attorney in pending cases, with those who are unrepresented being ordered for deportation 90 percent of the time. Those with a lawyer are five times more likely to be granted relief by an immigration judge. Surveying a decade’s worth of court reports, a Transactional Records Access Clearinghouse study found that the single most important factor in determining the outcome of a case for unaccompanied minors was the presence of an attorney.
The severity of the situation has prompted the House of Representatives to step into this growing debate over whether immigrant children facing deportation are entitled to taxpayer-funded attorneys as well. On February 26, 2016, 54 liberals introduced a complimentary bill, H.R. 4646 (also titled “Fair Day in Court for Kids Act”), which will also require the U.S. Department of Homeland Security to submit reports to Congress on the number of immigrants–identified in the original “Fair Day in Court for Kids Act”–who are given counsel representation and who receive legal representation.
With a goal to protect the millions of children who are forced to go through the legal court system alone, these two new measures may be the very actions needed to drastically improve the outcome for many scared kids who may likely qualify as refugees in the U.S. Both actions have already received co-sponsorship support from Senators Bob Menendez of New Jersey, Kirsten Gillibrand of New York, and Bernie Sanders of Vermont.
“Our immigration policies must be consistent with our historical commitment to provide protection and due process to those fleeing violence and persecution, “ said Sanders in a statement last month. “We will not tolerate calls to send back unaccompanied children and victims of crime and domestic violence to the countries they have fled.”
Immigrant rights groups have been equally as enthusiastic about the bills, saying that U.S. leaders have taken “an important first step to acknowledge that this is a refugee crisis, not a border security issue, and that children and families coming to the U.S. from Central America deserve a fair shot at asylum,” says Bruce Lesley, President of First Focus Campaign for Children.
Lynn Tramonte, Deputy Director of America’s Voice Education Fund adds: “Passing this legislation would be an important step towards aligning our actual policies on-the-ground with our stated values as Americans. No child should have to navigate the immigration legal process by herself. It’s incredible that we even have to say that, but we do […] We thank the Senators behind this legislation for their leadership and commitment. We should all stand behind their efforts to ensure that the principles of basic legal fairness are upheld, even and especially for children and young people.”
Though it is unclear whether these bills will gain any traction in Congress, the pieces of legislation are, nonetheless, important markers for both the upcoming presidential campaign and for the ongoing controversies surrounding how this country should be treating undocumented immigrants, particularly unaccompanied children. “Look, deportation means death for some of these people,” Reid says. “Given the life-and-death consequences of deportation to this region, we must ensure that we are not putting asylum-seeking women and children in harm’s way.”
“We can do this by making sure that these desperate women and children have a lawyer,” he added. “The humanitarian crisis at our doorstep demands that we, as Americans, affirm our fundamental values of protection and due process.”
It is time to throw away that haunting image, the one of innocent young kids standing alone in huge courts of law with a language barrier and no one around to comfort them, let alone advocate for them. “This isn’t how the United States should treat refugees. It’s certainly not how we should treat children fleeing violence,” says Reid.