Children Have an International Human Right to an Attorney When Facing U.S. Immigration Proceedings
By Monica Macias
The rights of children in the United States have recently become a focus of evolving immigration law. As more and more children, some as young as toddlers, are facing immigration courts all around the United States. Most of whom are left to defend themselves from deportation in front of a federal immigration court judge, while across the table, lies the expert attorneys of the Department of Homeland Security. The reason, says the government, is that these proceedings are civil, and not criminal; thus, not even children have a right to counsel – even though, many are detained during this time.
Shockingly, an immigration judge made some comments about children representing themselves in immigration court during a deposition: “I’ve taught immigration law literally to 3-year olds and 4-year-olds. It takes a lot of time. It takes a lot of patience. They get it. It’s not the most efficient, but it can be done.” He reaffirmed his position several times by stating, “I’ve told you I have trained three year old and four year olds in immigration law. You can do a fair hearing.”
Alarmingly, the federal court judge’s statements about his teaching abilities are not the real problem. What is more troubling is the practice of forcing thousands of children, whether four or seventeen years old, to defend themselves in immigration court. Children migrate for many reasons. Some children do so because they are fleeing war, gangs or persecution in their home countries. Others are victims of sex trafficking or slavery and are escaping their abusers. Still, others do so out of desperation and lack or resources, hoping to find better economic opportunities, or to possibly reunite with family members who already made the journey to the United States.
International Human Rights Law Recognizes the Right to an Attorney for Children Facing Deportation
International human rights law can provide a solution because it recognizes the right to an attorney for immigrant children facing deportation proceedings. International human rights law guarantees the right to the fair administration of justice and equality under the law. Specifically, the Convention on the Rights of the Child (“CRC’”) recognizes that attorneys for children in immigration proceedings are needed to ensure the best interest of the child. The United States has ratified several human rights treaties that it could look to for guidance—the Convention against Torture and Other Cruel, inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights.
The CRC describes the vulnerabilities of children immigration proceedings and why there is a need for an attorney for these children. It is also the most widely ratified human rights treaty in the world. The CRC establishes the civil, political, economic, social, and cultural rights of all children. It makes clear that the right of children to have an attorney is needed to protect children’s due process rights. The CRC was signed by the United States in 1995 and it has even been cited by the U.S. Supreme Court as a source of international norms on issues relating to the human rights of children. Under the CRC, parties are obligated to take “appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee . . . shall . . . receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights.” Furthermore, “[e]very child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance.” The CRC recognizes that children have unique vulnerabilities in judicial and administrative hearings.
The United States may already be obligated to fulfill promises of procedural safeguards under certain conditions. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) was ratified by the United States in 1994. The CAT prohibits parties from sending people to any country where there is reason to believe they would be in danger of being subjected to torture and requires procedural safeguards to ensure proper protection. These procedural safeguards would include appointing children with attorneys when being subjected to immigration proceedings. The U.N. Committee against Torture recommended that the United States needs to “provide for special consideration for minor” who are seeking asylum in the United States and “guarantee access” to an attorney.
However, these core protections are not a novel notion as they are long rooted in international law. The International Covenant on Civil and Political Rights (“ICCPR”) was ratified by the United States in 1992. The ICCPR contains similar protections found in the CRC and CAT. The ICCPR states that “All persons shall be equal before the courts and tribunals. In the determination of. . . his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing.” In regards to immigration and deportation, an individual “may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall . . . be allowed to submit the reasons against his expulsion and to have his case reviewed . . . and be represented for the purpose . . . .”
A Possible Solution: Fair Day in Court for Kids Act
A new bill introduced by Senator Harry Reid (D-NV), along with Senators Dick Durbin (D-IL), Patty Murray (D-WA), Patrick Leahy (D-VT), and Bob Menendez (D-NJ) introduced the “Fair Day in Court for Kids Act.” The bill would provide unaccompanied children and other vulnerable populations with attorneys to guide them through the complicated immigration court process.
Regardless of the legal mechanism for delivering the protection of these rights, the critical notion is clear: when an average toddler cannot navigate the complexities of dressing themselves, crossing the street, or leaving behind their blanket, the legal system must look out for their wellbeing.
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 U.N. Treaty Collection, Convention on the Rights of the Child Status, https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&clang=_en (ratification by 196 parties).
The United States has an obligation with respect to the rights set forth in the CRC because of the Vienna Convention on the Law of Treaties, signed by the United States in 1970 and accepted that it is declarative of customary international law.
 See Ropers v. Simmons, 543 U.S. 551, 577 (2005)(citing article 37 of the CRC).
 Convention on the Rights of the Child art. 22
 Id. at art. 37
 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, opened for signature Dec. 10, 1984, S. Treaty Doc. 100-20, 1465 U.N.T.S. 85.
 Comm. Against Torture (2014)
 International Covenant on Civil and Political Rights art. 14, opened for signature Dec. 16, 1966, S. Treaty Doc. 95-20, 999 U.N.T.S. 171.