Why Are These Children Representing Themselves in Court?

This article orginally appeared on Reuters on January 14, 2016.

By Uzoamaka Emeka Nzelibe

In the United States, many children in immigration court proceedings are unrepresented and must present their case to stay in the country without the help of a lawyer. A November 2014 report analyzing U.S. immigration court data found that about 43,000 children — two-thirds of the children with pending cases — were unrepresented. Meanwhile, the opposing side, the U.S. government, is always represented by an attorney.

Children’s immigration cases are complex and often require coordination between the immigration court, state family courts, and different agencies of the Department of Homeland Security. The complexity of U.S. laws, the ages and inexperience of the children, and the adversarial nature of the proceedings all work together to increase the likelihood that a judge will make the wrong decision and deport an unrepresented child who is in need of protection and eligible for asylum or other forms of humanitarian relief.

Children, especially those who don’t speak English, should not have to represent themselves in U.S. immigration courts. Lawyers are needed to protect against bad decisions that can have huge, life-altering consequences for the children involved.

Unsurprisingly, studies show that having legal representation in immigration proceedings makes a huge difference in case outcomes. According to a 2014 study, a child with a lawyer has a 73 percent chance of succeeding on their case versus only a 15 percent chance if they do not have a lawyer.

If this is true, why don’t the children automatically have a lawyer? Because immigration proceedings are considered civil actions and not criminal proceedings. In other words, what is being decided in immigration court is whether someone can remain in the country — not whether to punish the person for illegally entering the country. Thus, indigent children are not entitled to appointed, government-paid counsel the way they would if they were accused of committing a crime.

The Obama administration agrees that children in immigration court need lawyers and has provided some funding to level the playing field. But these efforts rely heavily on nonprofits and pro bono work and fund lawyers for only a small fraction of the nearly 70,000 unaccompanied children apprehended at the border last year.

The programs also have the unintended consequence of providing an advantage to children in large metro areas. Children who are unlucky enough to be released to family members in far-flung locations have little to no chance of finding legal representation, because the majority of nonprofits who do this kind of work are based in cities. Take for example, a recent call I received to represent a child residing in Percy, Illinois, a small town in southwestern Illinois. Although the child appeared to have a basis to remain legally in the United States, my organization, which is located in Chicago, had to decline the case because we were unable to represent a child who lived more than 300 miles away.

Notions of due process enshrined in our Constitution and immigration laws support a right to counsel for all indigent children in immigration court. Due process is the idea that when the government acts to affect a person’s life, liberty or property, it must do so fairly, including providing the individual with a meaningful opportunity to be heard. For children in immigration court, however, that opportunity too often depends on benevolence and luck.

Some have argued that providing lawyers to children will encourage more of them to cross the border. These concerns ignore the real push factors — heightened violence and poverty in Central America and the children’s desire to reunify with family members in the United States. Also, despite the Obama administration’s policy of prioritizing children’s cases in an effort to expedite their removal from the United States and deter more children from coming, the flow of children across the southwest border increased again during the last few months of 2015. The policy has not deterred the children; it has simply exacerbated the backlogs in the immigration court system and pushed the scheduling of initial hearings for some cases to2019.

Certainly, government-appointed counsel will cost money. But the alternative, no lawyers, is also costly and inefficient. When a child is unrepresented, judges are required to take additional steps to ensure the proceedings are as fair as possible, including postponing the case multiple times to give the child a chance to find a free lawyer, explaining the immigration process, assisting the child with making a request for immigration relief, and modifying courtroom procedures to accommodate the child’s level of understanding. These additional steps are not an adequate substitute for counsel or achieve much in the way of fairness; they merely draw out the proceedings and use up the court’s resources. Immigration judges recognize the burden that unrepresented children place on the court system, and support counsel for indigent children as a way to clear their dockets and streamline the court process.

Allowing immigration judges to decide on a case-by-case basis whether a child is entitled to a lawyer is not a cheaper alternative to providing lawyers to all children. It will merely clog up our courts with mini-trials to prove the obvious — namely, that 16-year-old children cannot adequately represent themselves in court.

The current system is unfair and fails to provide children a meaningful opportunity to present their cases in court. Financial cost alone cannot justify an arbitrary and lopsided system of justice. We must balance the financial costs against the costs to our values. Without appointed counsel, children in immigration court are effectively denied their day in court.

- Uzoamaka Emeka Nzelibe is a clincial assistant professor at Northwestern University's Pritzker School of Law, where she is also a staff attorney with the Children and Family Justice Center of the Bluhm Legal Clinic.