ACLU Files Lawsuit to Require Border Kids Be Granted Legal Counsel
The New York Times recently reported that the ACLU has filed a class action lawsuit on behalf of unaccompanied children seeking refuge in the U.S. – Border Kids – asserting their right to legal counsel. In addition to creating a backlog of immigration cases – often pushing previous cases to the back per executive order, these kids have been placed in “family detention centers” and have been facing court hearings often without legal counsel.
The U.S. Constitution requires that individuals facing criminal charges have a right to legal counsel. There is a separate debate over what the quality of that legal counsel should look like, however, the key point is that there is no constitutional requirement for legal counsel in civil cases. Immigration, to the surprise of many, falls under civil judicial authority and the government has no legal requirement to ensure they have legal counsel.
According to the Times, In remarks to the Hispanic National Bar Association in 2014, then-Attorney General Eric H. Holder Jr. said, “Though these children may not have a constitutional right to a lawyer, we have policy reasons and a moral obligation to ensure the presence of counsel.”
The case could be a groundbreaking one, and will likely have implications far beyond immigration law. For example, evictions, foreclosures and family law are also considered under civil jurisdiction. Parents fighting for child custody or people facing the loss of their home or apartment must hire private legal counsel in order to be represented. While some legal services are available for low-income individuals, the caseload is often well beyond the capacity of the agencies’ staff. Further, the income brackets are often so low that many people would not be able to incur the costs of legal fees and are thus left to on their own to face the courts – and opponent lawyers. If the ACLU argument is successful, a similar argument could be made that these civil cases are fundamental to basic needs and therefore should require legal counsel.
In the meantime, the Times reports, “We have looked for any legal system in the United States where children are required to represent themselves against a government lawyer — child welfare proceedings, juvenile delinquency proceedings. We have not yet found one, and the government hasn’t found one either,” Stephen Kang, a lawyer for the American Civil Liberties Union’s Immigrants’ Right Project, said in an interview.
The youth distinction could ensure this case stays confined to the unique issue of Border Kids asylum cases, but for now the case against the court process begins.