Unaccompanied Minor Litigants: Expecting 10-Year-Old to Appear Pro Se in Immigration Court is Recipe for Removal

Photo courtesy of Pixabay
Photo courtesy of Pixabay


By Natalie Tupta, Staff Writer

In the last several years, record numbers of children have crossed the southern border of the United States without their parents in search of a better life. U.S. Customs and Border Protection reports apprehending 108,511 “Unaccompanied Alien Children” (UACs) between the ages of 0 and 17, in fiscal years 2014-2015 alone.[1] These children come from Mexico and Central America, and most of them are fleeing their home countries to escape horrific gang violence plaguing their communities.[2]

In the best scenarios, these children are reunited with relatives in the U.S. or are connected with services they need to thrive in their new home. These children inevitably suffer severe psychological trauma as a result of their experiences living in their home countries and fleeing to the U.S. for refuge.[3] They also risk dying on the treacherous journey[4] and being abused by human traffickers if they do make it into the custody of U.S. officials.[5] For the majority of these children who make it onto American soil and turn themselves over to law enforcement, the chances of staying in the U.S. are slim. This is primarily because of a lack of access to legal services.

Only about one-third of the unaccompanied minors entering the U.S. are represented by attorneys in their immigration cases, according to a 2014 report by the Transactional Records Access Clearinghouse of Syracuse University.[6] The same report found that children who had attorneys in immigration court were allowed to remain in the U.S. 73 percent of the time, whereas unrepresented children were only allowed to stay 15 percent of the time. This demonstrates that whether or not a child had legal counsel is the most important factor in predicting a case’s outcome.[7]

[pullquote]To give meaning to ‘Equal Justice Under Law,’ . . . to protect the interests of children who must struggle through [the immigration] system, the problem demands action now.[/pullquote]

Because immigration is civil law rather than criminal law, these unaccompanied minors are not entitled to legal counsel funded by the U.S. government, such as public defenders. Furthermore, immigration legal service providers who typically serve indigent noncitizens are simply not equipped to handle the caseload of all the unaccompanied minors; this is in large part because these organizations do not receive federal funding[8] if they represent undocumented children.[9] As a result, two-thirds of these children are left to navigate the complex immigration legal system without attorneys.[10]

In September 2016, the Ninth Circuit issued an opinion on an interlocutory appeal. The issue was whether the district court has jurisdiction over a claim that indigent unaccompanied minors without legal counsel have a right to counsel in their immigration cases.[11] In its ruling that federal district courts do not have jurisdiction over such a claim, the majority explained that these plaintiffs could only file suits in federal district court after they exhausted their rights to appeal within the immigration court system. The court emphasized, however, that its opinion was on the procedural issue and not on the substance of the minors’ claims.[12]

The named plaintiffs in this class action suit were nine children aged 3 to 17. The children’s attorneys argued that these unaccompanied minors have a right to counsel in their immigration cases under the Fifth Amendment’s due process element and that the children “‘lack the intellectual and emotional capacity of adults,’ yet are ‘force[d] . . . to appear unrepresented in complex, adversarial court proceedings against trained [government] attorneys.’ . . . [T]his lack of representation ‘ensure[s] that [they and] thousands of children [are] deprived of a full and fair opportunity to identify defenses or seek relief for which they qualify.’”[13]

Judge McKeown, who wrote the majority opinion, also authored a special concurring opinion. Within it, she explained that although the court was only able to rule on the procedural issue in the case, the grave moral questions implicated by the substantive issues of the case did not escape the court’s notice.[14]

Judge McKeown encouraged Congress and the members of the Executive Branch not to stand by and wait while these plaintiffs and the class they represent see their case up through the immigration court scheme and back into the federal court system[15]; this is a lengthy and costly process that will unnecessarily leave thousands of children unrepresented in the meantime. The court concluded that “[t]o give meaning to ‘Equal Justice Under Law,’ the tag line engraved on the U.S. Supreme Court building, to ensure the fair and effective administration of our immigration system, and to protect the interests of children who must struggle through that system, the problem demands action now.”[16]

We can do better for these children, and we must.



[1] U.S. Customs and Border Protection, Southwest Border Unaccompanied Alien Children Statistics FY 2015, Nov. 24, 2015, https://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children/fy-2015.

[2] The New York Times, Fleeing Gangs, Children Head to U.S. Border, July 9, 2014, http://www.nytimes.com/2014/07/10/world/americas/fleeing-gangs-children-head-to-us-border.html?_r=0.

[3] American Psychological Association, Helping immigrant children heal, March 2015, http://www.apa.org/monitor/2015/03/immigrant-children.aspx.

[4] Mercury News, Border death of boy, 11, highlights dangers for child immigrants, July 1, 2014, http://www.mercurynews.com/2014/07/01/border-death-of-boy-11-highlights-dangers-for-child-immigrants/. See also Los Angeles Times, Immigrant deaths along Mexico border decrease, officials say, but critics are left wondering, Dec. 22, 2015, http://www.latimes.com/nation/la-na-migrant-deaths-decline-20151222-story.html.

[5] The Washington Post, Overwhelmed federal officials released immigrant teens to traffickers in 2014, Jan. 26, 2016, https://www.washingtonpost.com/national/failures-in-handling-unaccompanied-migrant-minors-have-led-to-trafficking/2016/01/26/c47de164-c138-11e5-9443-7074c3645405_story.html.

[6] Los Angeles Times, Editorial: Washington must address legal help for minors in immigration court, Sept. 27 2016, http://www.latimes.com/opinion/editorials/la-ed-minors-immigration-obama-congress-20160926-snap-story.html, citing Transactional Records Access Clearinghouse, Representation for Unaccompanied Children in Immigration Court, Nov. 25, 2014, http://trac.syr.edu/immigration/reports/371/. See also, BuzzFeed News, This Is What Happens When Unaccompanied Child Migrants Don’t Have Legal Help, Apr. 7, 2016, https://www.buzzfeed.com/adolfoflores/immigrant-children-legal-counsel-battle?utm_term=.qi2Xrr0M5#.tc5eXXj9P.

[7] Transactional Records Access Clearinghouse, Representation for Unaccompanied Children in Immigration Court, Nov. 25, 2014, http://trac.syr.edu/immigration/reports/371/.

[8] Legal Services Corporation, How Legal Aid Works, http://www.lsc.gov/.

[9] Brennan Center for Justice at New York University School of Law, Fact Sheet: The Restriction Barring LSC-Funded Lawyers From Assisting Certain Immigrant Groups, Sept. 26, 2003, https://www.brennancenter.org/analysis/fact-sheet-restriction-barring-lsc-funded-lawyers-assisting-certain-immigrant-groups.

[10] Transactional Records Access Clearinghouse, Representation for Unaccompanied Children in Immigration Court, Nov. 25, 2014, http://trac.syr.edu/immigration/reports/371/.

[11] J.E.F.M. v. Lynch, 2016 U.S. App. LEXIS 17153 (9th Cir. 2016), available at https://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-35738.pdf at 6.

[12] Id.

[13] Id. at 7.

[14] Id. at 26.

[15] Id. at 31.

[16] Id.

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