Legal Representation in Immigration Proceedings is a Human Right

Human Rights Clinic Student Keerthana Nimmala writes on the lack of legal representation in immigration cases. Keerthana was recently awarded the 2016 David W. Leebron fellowship, and will be working at Sanctuary for Families this fall.

New York, April 19, 2016— Three year olds can represent themselves in immigration proceedings, according to Assistant Chief Immigration Judge Jack H. Weil. The Judge, who is currently responsible for training other immigration judges, made this unusual claim during a deposition in J.E.F.M. v. Lynch, a lawsuit filed by the ACLU and other immigrants’ rights groups in October 2014 challenging the lack of legal representation for children in immigration and asylum proceedings. Judge Weil’s claim shines a light on the Department of Justice’s continued violation of asylum seekers’ human rights by not guaranteeing a right to counsel in immigration proceedings.

Under international human rights law, children in deportation proceedings have the right to counsel. Article 13 of the International Covenant on Civil and Political Rights (ratified by the U.S. in 1992) provides that immigrants must be allowed legal representation in their deportation hearings. Article 37 of the Convention on the Rights of the Child (signed by the U.S. in 1995) specifically states, “every child deprived of his or her liberty shall have the right to legal…assistance.” In 2014, the United Nations Committee against Torture, which oversees the implementation of the Convention against Torture (ratified by the U.S. in 1994), recommended that the U.S. provide “special consideration for minors” seeking asylum in the U.S. and guarantee “access to counsel.” The United States’ obligations under international human rights law compel the government to provide legal representation for children in deportation proceedings when these children cannot otherwise obtain representation.

The human consequences of the U.S. government’s violation of this right are severe: almost 100 percent of women with children, and eighty-five percent of unaccompanied minors are deported from the United States after hearings that take place without any legal representation. These women and children are sent back to countries where many are subjected to violence, sexual assault, and murder. A recent study identifies eighty-three US deportees who have been murdered since January 2014 after their forced return to El Salvador, Honduras, and Guatemala. Yet when women and children had access to legal representation in detention proceedings, seventy-three percent were allowed to remain in the United States from 2012 to 2014. The stark difference of success in immigration proceedings with and without legal representation highlights the fact that the right to counsel is necessary to ensure fairness, and to save lives.

Currently, the United States detains all mothers with children apprehended while crossing the border, with more than 440,000 people currently in detention. In detention, mothers and children have little access to lawyers who could help save their lives.

However, mass detention of mothers and children was not always U.S. policy. Prior to 2006, when families were apprehended crossing the border, they were served with a notice to appear in court for deportation proceedings, and were then released into the United States. During the time before their immigration hearings, asylum seekers had the opportunity to seek resources and counsel to fight deportation and apply for asylum.

However, in 2006, the Bush administration ended its “catch and release” policy, and began to detain mothers and children, opening the Hutto family detention center in 2006. In 2009, President Obama ended these Bush-era family detention polices. Yet in 2014, responding to the large numbers of children fleeing violence in Central America and crossing the Southwest border into the United States, the Obama administration began to detain mothers and children in unprecedented numbers.

While legal representation can literally help save lives, only one-third of unaccompanied minors are represented in immigration court proceedings. If successful, the ACLU’s lawsuit would enforce the human right to counsel for minors in immigration proceedings. While there is currently no lawsuit on behalf of women without legal representation in immigration proceedings, J.E.F.M. v. Lynch is a momentous first step in combatting one of the many violations of asylum seekers’ human rights in the United States. 

Readers interested in learning more about this issue or in getting involved can visit: https://www.aclu.org/issues/immigrants-rights and http://caraprobono.org.

Ed note: The Human Rights Institute represents Human Rights Watch in an amicus brief in J.E.F.M., filed in the 9th Circuit Court of Appeals. The amicus brief addresses in detail the relevant international law. A related post by HRI Executive Director Risa Kaufman can be found here.