Children entering the United States alone are afforded certain protections under the U.S. immigration law, but legal counsel is not one of them. In 2019, more than 72,000 unaccompanied alien children (UAC) traveled to the U.S. without a parent or legal guardian. Most of these minors went through the legal process of deportation without a lawyer.
Under federal law, immigration courts are classified as civil as opposed to criminal. As a result, government-provided lawyers are not required in immigration courts—even when juveniles are involved—like they are in criminal and juvenile delinquency proceedings.
Instead, federal, state and local governments, as well as nonprofit organizations, work to provide legal pro bono services to children who enter the U.S. illegally and are facing removal. Despite these efforts, it is estimated that 75% to 90% of children undergoing deportation proceedings do so without an attorney.
Evidence shows the presence of counsel influences the outcome of these cases. In 2014, 12% of unaccompanied minors represented by an attorney were deported, compared to a more than 80% deportation rate for those without legal representation.
The U.S. Supreme Court case Flores v. Reno led to the establishment of child welfare standards for immigrant detention facilities, including state standards for housing and care of dependent children. The standards also cover state licensing of detention facilities, food, medical assistance and contact with family members. The Office of Refugee Resettlement (ORR) and U.S. Immigration and Customs Enforcement created specific facilities and policies regarding the treatment of minors. However, the right to counsel was not included among these updated rules.
With the current backlog of child immigrant cases reaching over 90,000, thousands will face their day in court without legal support.
- Under Flores v. Reno, child immigration facilities must adhere to all applicable child welfare laws in the state where they are located.
- There are many classifications for which unaccompanied children may qualify, including special immigrant juveniles, asylum, victims of crime, victims of trafficking, and Deferred Action for Childhood Arrivals.
- Upon arrest, unaccompanied minors are provided with a directory of pro bono resources in each state, although they may be unavailable due to high demand.