Toddlers Aren’t Lawyers

Imagine a four-year-old standing up in federal court to defend herself. If you need some help visualizing, watch some of these videos by immigration attorneys who filmed their own children in mock hearings. Some kids asked to be removed to the country of “pizza” or “Disneyland.”

That sounds cute, but in real life these hearings can have life or death consequences for children.

Under current law, kids have no right to a lawyer and many are expected to represent themselves in complex removal proceedings. Many of these children are asylum-seekers who fled horrific violence in Central America. Yet the government apparently thinks these traumatized three- and four-year-olds can competently represent themselves in immigration proceedings, without the assistance of a lawyer.

A federal immigration judge said as much in a deposition, as the Washington Post recently reported.

But there’s growing support among state and local governments and high-level officials are coming to the aid of children in removal proceedings. Last Friday, the Attorneys General of the states of California and Washington filed an amicus brief in the Ninth Circuit Court of Appeals in support of the position that children in deportation proceedings should be provided a lawyer if they cannot afford one on their own.

California Attorney General Kamala Harris also sponsored state legislation providing $3 million to nonprofit organizations to offer legal representation to unaccompanied minors. This funding dramatically helped build representation capacity for nonprofits, but also saved the lives of children who no longer had to go to court alone. AG Harris also rallied lawyers across California to commit to providing thousands of hours of pro bono representation to children in removal proceedings. While these efforts are applauded, increased funding and pro bono commitments are still not sufficient to provide counsel to all children in the state of California, much less nationally.

Studies show that access to counsel is the single most significant factor in determining whether a child will receive protection or be deported back into danger. In cases where the child had a lawyer, 73 percent were permitted to remain in the United States, whereas for those kids without representation only 15 percent were permitted to remain in the country. For vulnerable asylum seekers, this can mean the difference between life and death.

I recently met with a family in Los Angeles with two children, ages 4 and 15, who are in removal proceedings. The teenage boy had been kidnapped, tortured, and sexually assaulted by gang members, resulting in severe psychological trauma. The gang threatened to rape the mother and her four-year-old little girl.

The family was desperate for representation for their asylum claim and could not find any organization to provide them with free legal services. Under the current system, neither the parents nor the children have the right to appointed counsel. Human Rights First found the family pro bono representation, and now they have a fighting chance at remaining in the United States and obtaining asylum. Other families and children are not so lucky.

Other state and local governments have pushed for universal representation for vulnerable populations—a model that provides representation to all individuals in a defined group, regardless of the perceived merits of their case. One such model—the New York Immigrant Family Unity Project, funded by the New York City Council—is slowly being replicated in jurisdictions around the country.

While these state and local efforts are important, they are not enough to solve the problem. As the Obama Administration continues to deport children and families without lawyers, Senators Reid (D-NV) and Lofgren (D-CA) have introduced legislation that will provide appointed counsel to unaccompanied children: the Fair Day in Court for Kids Act. Congress should pass it. Until then, it may be up to more state and local governments to fight on behalf of children and to push forward so that no child will have to appear in court without a lawyer.



  • Jenna Gilbert

Published on March 15, 2016


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