Students Speak: All minors have the right to counsel

To celebrate our first 50 years at The Santa Barbara & Ventura Colleges of Law, we’ve asked our students to revisit historical and noteworthy cases.

Every day out of fear and desperation, immigrant minors seek refuge in the United States. These undocumented children and adolescents are faced with continuous mistreatment while seeking refuge. At times, they will be separated from their family and met with brutality and isolation. Immigrant minors who flee threatening conditions are not always granted the safety that the U.S. can more easily provide.

Once in the U.S., these children are placed in immigration proceedings, denied the right to counsel, and forced to represent themselves. The Constitution guarantees minors in juvenile proceedings the right to counsel, why are they not provided the same rights in immigration courts?

Fernanda comes to the U.S.

Fernanda began her journey to the U.S. with her grandmother. Her mother remained in Honduras with plans to join them later. Unfortunately, after entering the U.S., Fernanda was taken from her grandmother and imprisoned. At two-years old, she was removed from her only relative in the U.S., and confined. Shortly after being separated, her grandmother was released, but Fernanda remained alone in a prison.

Detained and alone for three months, Fernanda was left to fend for herself and required to appear in court with only the support of an interpreter. As a toddler, Fernanda was unable to adequately represent herself. Unable to communicate her need to stay and the reasons why she was seeking refuge from her country, she was deported to Honduras. This unfortunate experience is one that occurs daily in the U.S.

Minors’ right to counsel in juvenile and immigration proceedings

An “intervening caretaker” is defined as an “ally of the minor, rather than solely as a punisher.” Prior to this, courts were only viewed as a provider of justice or “arbiter of justice.” Now the Court extended the approach to custodial power. This custodial power allows the state to intrude into a “minor’s sphere of liberty in a manner that exceeds justifiable intrusion into an adult’s sphere of liberty.” By expanding the court’s role in juvenile proceedings, it now acts as both caretaker and punisher.

The court views minors as lacking “legal capacity” because they are still developing and learning societal norms. It is unclear why the same applications are not used with immigrant minors. In both immigration and juvenile proceedings, children have experienced severe trauma and are seeking protection. Yet in one court they are provided a right to counsel, and in the other court they are not. The U.S. has evolved its judicial system to provide counsel to minors; however, the right for immigrant minors in immigration proceedings is nonexistent.

Current immigration proceedings for minors

Minors seek asylum because they are fearful of returning to their country of origin. These immigrants who are seeking relief in the U.S. without proper documentation are screened and offered immediate voluntary return to their country. If the immigrant minor is not immediately returned to their country, they are detained and given the opportunity to make an asylum claim. If the minor chooses to seek asylum, they must navigate the immigration system without counsel. Unlike juvenile proceedings, the court does not act as an “intervening caretaker.”

In asylum proceedings, immigrant minors are required to explain why they left their country of origin. Additionally, they have to prove they have a “well-founded fear of persecution based on race, religion, nationality, political opinion or membership of a particular social group.” If the minor successfully proves his or her reasoning, the court will grant asylum. If the minor is unsuccessful, the child will be involuntarily returned to the country of origin.

The current method for immigration proceedings with immigrant minors is not just wrong; it’s unconstitutional. Juvenile delinquency matters should have similar policy considerations as immigration proceedings because they both demand protections for children. In juvenile proceedings, the courts have held that the assistance of counsel is necessary to help the minor. Assistance of counsel facilitates “cope[ing] with the problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings and to ascertain whether he has a defense.” The court in juvenile proceedings acknowledges the inexperience of the minor and the need for assistance to guarantee a fair hearing under due process of the law. However, in immigration proceedings, these same minors would not be guaranteed the right to counsel.

Making immigration proceedings for minors constitutional

The current lack of due process to immigrant minors violates what the framers of the Constitution initially set out to protect—a fair and just government. Unfortunately, their intentions have not been guaranteed to minors in immigration proceedings. The need to have counsel represent immigrant minors must be required.

The failure to provide minors in immigration proceedings counsel must change. Courts have continuously recognized and weighed the development of a child in determining their ability to recognize the law. Minors are appointed counsel because they are not developmentally apt to act independently in court.

Immigration proceedings impacting the lives of minors have become daily headlines. From toddlers appearing in courtrooms, to children alone in detention facilities, these horrific events are not a rarity. The U.S. should uphold the constitutional protection guaranteed to minors by providing counsel to them in immigration proceedings. By applying our Constitution the way the framers intended, we can stop these tragic events and prohibit the unconstitutional treatment of minors seeking refuge in the U.S.

ABOUT THE AUTHOR:

Alyssa M. Esposito is a 4L at The Santa Barbara & Ventura Colleges of Law, interested in the practice of criminal law. Originally from Scranton, Pennsylvania, she relocated to California from Charleston, South Carolina, last summer with her fiance and two dogs. Prior to attending law school, she was a behavioral therapist for seven years and specialized in behavioral therapy with autistic children and young adults. She is a huge Harry Potter fan, loves reading, playing with her dogs Otis and Bailey, and traveling.

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