In the summer of 2018, many Americans were alarmed to read about the phenomenon of young immigrant children, without free legal aid, having to plead their cases before a judge in deportation and asylum cases. For example, in a 27 June article,the Texas Tribune reported that:
As the White House faces court orders to reunite families separated at the border, immigrant children as young as 3 are being ordered into court for their own deportation proceedings, according to attorneys in Texas, California and Washington, D.C.
Requiring unaccompanied minors to go through deportation alone is not a new practice. But in the wake of the Trump administration’s controversial family separation policy, more young children — including toddlers — are being affected than in the past. The 2,000-plus separated children will likely need to deal with court proceedings even as they grapple with the ongoing trauma of being taken from their parents.
This report prompted inquiries from multiple skeptical and concerned readers asking us if it was true.
The referenced practice does occur today and has taken place for years. We spoke with immigration attorneys who confirmed that immigrant children subject to deportation or asylum hearings are not entitled to court-appointed lawyers, and they recalled having represented clients as young as two and three years old.
In the United States, any defendant in a criminal case is constitutionally entitled to be represented by a court-appointed attorney at no cost if they cannot afford to hire their own. However, this constitutional guarantee does not extend to civil cases or immigration courts (although in some states and some circumstances, state law does entitle individuals to free legal aid in civil cases).
Instead, those who find themselves before immigration courts, whether adults or children, have the right, if not always the wherewithal, to obtain legal representation from one of a number of non-profit organizations and law firms who work on a pro bono basis.
Although defendants do not have a right to court-appointed free legal aid in immigration court, the federal government does indirectly contribute to their assistance. The Office for Refugee Resettlement, which is part of the Department of Health and Human Services, contracts with the non-profit Vera Institute for Justice, which in turn sub-contracts with more than a dozen organizations around the country to provide free legal representation and advice to immigrants facing deportation and other legal issues.
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