Via wsj.com: this is a repost of an article that appeared September 23, 2013, on page A15 in the U.S. edition of The Wall Street Journal, with the headline: Children Alone and Lawyerless in a Strange Land.
Children Alone and Lawyerless in a Strange Land
We’ve seen 5-year-old immigrants in front of a U.S. judge, about to be sent back into harm’s way.
One of us is a former head of U.S. Immigration and Customs Enforcement; the other is a longtime immigrant-rights advocate. This may make us unlikely allies, but the fundamental unfairness of the U.S. immigration system toward children—particularly the thousands of undocumented, unaccompanied minors who enter the country each year—is a uniting issue.
For a nation founded on the principles of due process and access to justice, we are grievously violating both when it comes to deporting undocumented immigrant children. There are no public defenders in our immigration system. Immigrants facing deportation must find and pay for their own lawyers to make their case before an immigration judge and counter a U.S. government attorney arguing for their deportation—regardless of their age.
These are unusually vulnerable children. Many are fleeing violence, extreme poverty, abuse or abandonment in their home countries of Mexico and Central America. Some have been trafficked. Others are hoping to support impoverished families at home, or reunite with parents who left them behind years ago. Regardless of why they come, they deserve basic protection as children and should not lack representation in a U.S. court of law.
Yet they do, many thousands of them. U.S. government officials estimate that 23,000 unaccompanied minors will be placed into U.S. custody in fiscal year 2013; nearly 14,000 were in fiscal 2012. One theory is their numbers are increasing partly due to a change in Mexican law that has slowed the deportation of children fleeing poverty and gang violence in Honduras, Guatemala, El Salvador and elsewhere. Most are between the ages of 13 and 17; many are younger. We’ve seen children as young as 5 facing an immigration judge with no representation. Without counsel, these children are often sent back into harm’s way.
Solutions exist that would put the U.S. back in line with our values and ensure the basic protection of these children. We should as a nation support the appointment of counsel for the most vulnerable in our immigration system, unaccompanied children. Such a provision is included in the immigration-reform bill passed by the Senate in June. What better reason for the House to pass the bill than to protect powerless, unaccompanied children by appointing counsel?
There are high costs associated with failing to provide appointment of counsel. Immigration judges in cases involving minors often postpone reaching a decision repeatedly, hoping that when the case comes up next time, the child will have found a lawyer. These continuances clog up already hugely overburdened court dockets and are a waste of time and money. As an example of how important representation is to cases like these, asylum seekers are three times more likely to win their case if they have an attorney.
Innovative approaches to this problem are under way, including a public-private partnership model that facilitates the pro bono representation of unaccompanied children by attorneys in law firms, corporations and law schools. While the private sector has been extraordinarily generous with its time helping these children, it is not enough. The need for these services is tremendous and some form of government appointed counsel is necessary. This could be done through an expansion of current providers for indigent counsel, or even through grants that allow existing nongovernmental organizations that assist children to expand their efforts.
To be clear, the appointment of counsel will not result in making every child eligible to stay in the U.S. There will always be circumstances in which a child has no legal recourse and must return to his home country. But at least in these circumstances, we will know that the child received due process and, through the assistance of counsel, was able to present the best case.
One of America’s greatest gifts is that we learn from our failings and find ways to constantly improve ourselves. We urge the House of Representatives in its work on immigration reform to consider correcting the injustices we have inflicted on children who are coming alone to our country for safe haven, and treat them as we would treat any vulnerable child—with fundamental fairness and compassion.
Ms. Myers Wood is president of Guidepost Solutions LLC and a former head of U.S. Immigration and Customs Enforcement (2006-08). Ms. Young is president of Kids in Need of Defense.
A version of this article appeared September 23, 2013, on page A15 in the U.S. edition of The Wall Street Journal, with the headline: Children Alone and Lawyerless in a Strange Land.