Immigrant Children Do Not Have the Right to an Attorney

By Ahilan Arulanantham

Last week, a three-judge panel of the Ninth Circuit issued a truly brutal decision, concluding that the Constitution did not require the government to provide a lawyer to a 15-year-old Honduran boy facing deportation.

It appears to be the first case ever to hold that children can represent themselves in court when important legal rights are at stake. That the ruling came in a deportation case involving asylum — where the stakes are incredibly high, the law notoriously complex, and the government pays a trained prosecutor to advocate the child’s deportation — makes the court’s decision even more extreme. The ruling is the latest, and most disappointing, chapter in our long-running effort to obtain fairness for children in immigration court.

The notion that children are somehow capable of defending their rights in court defies basic common sense. It is entirely foreign to our law and contrary to the Constitution’s due process guarantee. Under longstanding Supreme Court precedent, if authorities wanted to send the boy, known as C.J., to a juvenile disciplinary center for smoking cigarettes or cutting class, he would be entitled to a lawyer to ensure that he received a fair trial. However, when it comes to children facing deportation, the federal government believes that children have no right to an appointed lawyer if they are unable to afford one. The government recognizes no exceptions to this rule, even in cases where an
erroneous decision could be tantamount to a death sentence.

The stakes are exactly that high for C.J. As the court acknowledged, he faces a serious risk of death at the hands of gangs in Honduras. When he was 13 years old, he and his mother fled after gang members pointed a gun to his head, threatening to kill him if he did not join their ranks. Sadly, such threats are common in C.J.’s hometown of San Pedro Sula, one of the most violent cities on Earth.

Despite the danger that awaits him, the court found that C.J. had failed to show that he met the other technical requirements to qualify for asylum. He had failed to explain that gang members were motivated to kill him because of his “membership in a particular social group,” and that the Honduran government was “unable or unwilling to control” the gang in question. Of course, C.J. did not even know of, let alone understand, these abstract legal requirements. But the court found he had no right to a lawyer to help him meet them.

If allowed to stand, the decision’s consequences will extend far beyond C.J. Well over 100,000 children from Honduras, Guatemala, and El Salvador have fled to the United States in the last five years, as conditions in those countries have grown steadily worse. To give just one example: They have three of the five highest murder rates among all countries on Earth, mostly due to the conflict between violent gangs and state security forces.

But only about half of the children who came here in the last several years have ended up with attorneys to represent them in immigration court. What happens to the rest? Statistical evidence confirms what common sense already tells us: A child without a lawyer has almost no chance of presenting and winning a complex asylum case. They are allowed to remain here less than 10 percent of the time. Representation makes all the difference, as children are five times more likely to prevail if they have an attorney. Even among adults, a 2011 report from a panel headed by a federal judge found that adult immigrants with lawyers are five times more likely to win their cases than those who represent themselves.

While the decision sends an unfortunate message to children seeking justice from our courts, it may not be the last word on this issue. The decision of a three-judge panel can be reviewed by the entire Ninth Circuit, currently 25 judges. And even that decision can be reviewed by the Supreme Court.

Nor are the courts the only avenue to address this most serious human rights problem. Congress could address this injustice by allocating funding to guarantee attorneys for children in any upcoming immigration legislation. A provision containing such a guarantee actually passed the Senate — with 68 votes — as part of a major immigration law reform bill in 2013. And the Trump administration could fix the problem even more easily, whether by allocating funds directly or instructing its judges not to proceed against children until they find a lawyer.

We do not know which of the three branches of government will eventually take responsibility for providing due process for these vulnerable children. But the ACLU will not stop working until one of them does what the Constitution demands. All children deserve due process.

Ahilan Arulanantham is Deputy Legal Director of ACLU of Southern California

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Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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  1. Howard P

    Note:  the author conveniently did not note (from the decision cited by the author),

    Concurring, Judge Owens wrote that the majority’s opinion does not hold, or even discuss, whether the Due Process Clause mandates counsel for unaccompanied minors, and observed that that is a different question that could lead to a different answer.

    Damn convenient, if you are making a “point”, have an “agenda” beyond the case at hand, and ignoring the limited scope of what the court was asked, that was within their purview!

    Wrong questions appear to have been asked… who asked the questions of the court? An ACLU ‘attorney’? Lack of competence?


    1. Eric Gelber

      Howard – You’ve misunderstood the concurring opinion. The concurring judge merely noted that in a case involving an unaccompanied minor, rather than (as here) an accompanied minor, the result might be different. The court can only decide the case before it. The ACLU did not fail to make a constitutional argument.

      1. Howard P

        You may well be correct… the author of the topic post made no such distinction… I see that now in the decision… thanks… missed the nuance…

        Not clear, at the point of the decision, whether the minor was ‘accompanied’ or not… I defer to you…

        Still don’t see where ACLU was involved in the INS proceeding… I can be corrected…

        Seems to be a bunch of attorneys on appeal… dearth on basic proceedings…

      2. Howard P

        Eric… make no mistake about this… there is a young man who should have his ruling overturned, as to his situation.   IMHO, he should be allowed to stay… if ACLU was involved initially, he appears to have had ineffective/incompetent counsel… my gut (not always correct) informs me that this case was a “set-up”… lack of ACLU representation, initially, to make “a point”… I was actually a dues-paying member of ACLU in the ’70’s… not now… feel they changed, not me…

        1. David Greenwald

          Did you click on the first link at the top of the article?  ACLU (page 4) is among the listed counsel.

          The opinion: “Because we hold that neither the Due Process Clause nor the INA creates a categorical right to court-appointed counsel at government expense for alien minors, and because we conclude that the Board’s determination on the merits is supported by substantial evidence, we deny C.J.’s petition.”

        2. Howard P

          Despite the danger that awaits him, the court found that C.J. had failed to show that he met the other technical requirements to qualify for asylum. He had failed to explain that gang members were motivated to kill him because of his “membership in a particular social group,” and that the Honduran government was “unable or unwilling to control” the gang in question. Of course, C.J. did not even know of, let alone understand, these abstract legal requirements. But the court found he had no right to a lawyer to help him meet them.

          Sure looks like he was lacking representation @ the INS level…

          1. David Greenwald

            I’m sure he was. Maybe you can email me a bunch of questions that I can ask Holly Cooper and do a follow up article.

  2. Howard P

    Think about it… the child had no access to an attorney because they could not afford one… who filed the petition/pleadings to the circuit court?   Where were they during the INS proceedings?

      1. Howard P

        Thank you… look forward to a comment by Holly… if she has time and/or inclination…

        Just seemed unreal that a 15 year old had not had representation until he did when it went up to the appeals court… big disconnect for me, but engineers ‘think funny.’.. we like things to make sense…

        1. Ann Block

          How legal representation and the court and appellate system works is complicated.  The ACLU and many similar nonprofits do not generally do “direct” representation of individuals.  Instead they take on cases on appeal, to write the appellate brief, and do the oral argument (if granted) where they can make the most impact, as appellate cases set precedent for all the lower courts.   They take on “class action” cases for the same reason.  We do need something like “public defenders” for immigration court cases (which the national head of the judge’s union who is based in SF, Immigration Judge Dana Marks, has compared to “doing death penalty cases in traffic court”) — but we do not have that presently, so what little resources there are to represent indigent immigrants are usually directed where the impact is greatest.  There is a movement to change that, with certain foundations and local governments working to fund legal services for low-income immigrants in removal proceedings — but it has a long way to go.

          In FY 2016, 237,900 people were placed into removal proceedings, with an additional 280,000 cases still pending at that stage — over half a million cases, with more added each year.  There are about 15,000 attorneys who are members of the American Immigration Lawyers Association, and probably tw0-thirds to three-quarters of them do NOT take on removal defense (deportation) cases.   Those that do, mostly work as private bar attorneys, because until recently very, very few nonprofits have taken on removal cases, and the private attorneys that do so generally make about the same amount as starting teachers, sometimes less.  So that leaves only a few thousand generally underpaid removal defense attorneys (some skilled, some not) to represent a half-million people.  The ACLU doesn’t have the resources to represent even a fraction of those individuals directly, which is why it and many other nonprofit organzations focus on appeal and/or class action cases.  In addition, many court of appeals justices have commented that immigration law is the most complex and challenging area of U.S. law that exists today.  See the problem?

        2. Howard P

          Let me re-phrase… makes a lot of sense as to ACLU’s involvement, and initial lack thereof… understandable, and understood…

          Yet the comment about complicated laws regarding asylum/deportation is gravely concerning… particularly when those laws were probably written by… attorneys…

          Not doubting Ann… she seems to have it nailed…

          “First, we kill the lawyers” comes to mind, along with “the law is an ass”…

          Back on topic… this definitely looks like a ‘reviewable’ case, but as has been said, higher courts can only judge the record… they cannot re-do laws (nor, do pardons/clemency)… this is where we need to push the Congress… suspect the third branch of government is not a viable option…

        3. Jeff M

          This reminds me of one of the strong arguments for much greater border enforcement including a wall: protecting the people that are already here so that they have access to resources already stretched thin by the flood of people from decades of poor enforcement.

  3. Jerry Waszczuk


    Maybe a little off topic but  the deportation is deportation and is not pleasant. It does  not matter if you have an attorney or not . Is brutal and inhumane for folks who are good people.  Kids brought to this country by their parents  are being victimized and subjected to political game by two political swamps.

    Look at newest development in this matter :
    THE REGENTS OF THE UNIVERSITY OF CALIFORNIA and JANET NAPOLITANO, in her official capacity as President of the University of California, Plaintiffs,
    UNITED STATES DEPARTMENT OF HOMELAND SECURITY and KIRSTJEN NIELSEN, in her official capacity as Secretary of the Department of Homeland Security, Defendants.
    Nos. C 17-05211 WHA, C 17-05235 WHA, C 17-05329 WHA, C 17-05380 WHA, C 17-05813 WHA
    United States District Court, N.D. California
    January 9, 2018
             In these challenges to the government’s rescission of the Deferred Action for Childhood Arrivals program, plaintiffs move for provisional relief while the government moves to dismiss for lack of jurisdiction. For the reasons below, dismissal is Denied and some provisional relief is Granted.

    1. Howard P

      Point taken… no way I was trying to minimalize your post… the whole deportation thing seems too arbitrary in its outcomes, based on individual circumstances…

      And, in a Sacramento case, deportation failure (illegal re-entry) ended up with the death of two PS officers…

      Not a simple matter…

  4. Tia Will


    This reminds me of one of the strong arguments for much greater border enforcement including a wall: protecting the people that are already here so that they have access to resources already stretched thin by the flood of people from decades of poor enforcement.”

    Having served as an ER physician for 2 years at a small portion of the border in question, I am of the opinion that a wall is not going to prove effective, nor is it necessary given that the number of crossings has already decreased. I would argue that instead of building a wall, the however many billion in dollars designated for that purpose could more productively be spent obtaining legal assistance for those in need thus lowering the number of those inadequately represented. Would also have the benefit of providing jobs for lawyers and their supporting staff many of whom are now de facto serving pro bono.

      1. Eric Gelber

        I have no, repeat, no interest in providing jobs for lawyers… quite the opposite.

        You’ve made your opinion of lawyers quite clear on numerous occasions. But you’ve also expressed the opinion that this case was wrongly decided and this minor should have had legal representation provided. Are you suggesting that attorneys work without compensation? Is that how things work in the field of engineering?

        1. Howard P

          Was reacting to a of choice another poster suggested… wall vs. attorneys…

          I suggested a different choice… change in laws… which many lawyers would oppose (engineers cannot change the laws they deal with.. gravity, physics).  Attorneys LIKE complex laws… gives them their specialties…

          Why are not attorneys advocating for simplification of laws,  or changes in the laws, where fewer attorneys are needed?  I can think of at least one reason… job security…

          [and compare a journeyman engineer salary to a journeyman attorney salary… and who endeavors to make sure sewage goes away, roads are passable, etc.?… I rest my case…]

          That was my point, but you seemed to have missed it… or I may have failed to put it in legal terms…

    1. Howard P

      BTW, does anyone have a fence?  A type of ‘wall’…  just a thought offered for reflection…

      Back east, fences were traditionally ~ 2-3 foot high, stone (from clearing glacial residue, in order to farm the rest), or white two-rail wood ones, suitable for defining property boundaries/rights, for sitting on while engaging with neighbors, and jumping over to play with other neighborhood children…

      In Davis, fences are not required… but OK to build a 6-7 foot one, subject, of course, to “peer review” as to design… another “wall”

      1. Tia Will


        There is a fence dividing our house from our next door neighbors. The first thing they did upon getting to know us was to place an archway between the front yards so we could go back and forth freely. Several years later we created a passageway in the back yard fence in the form of a decorative gate in order to go back and forth still more directly.

        I would offer a variation on a common homily “good fences make good neighbors”. My version is “good neighbors do not need good fences”.

        1. Howard P

          We had a several sections of a common fence blow down many years ago… during a storm… both our families had kids of similar age, who were always going back and forth, even before… the neighbor, a renter, and we as ‘owners of the adjacent property, figured out that it was in neither of our interests to notify their landlord (or for us to initiate anything)… just made it easier for the kids to be kids, interact, and play.

          Those kids are in their early/mid thirties now… the families still see each other often though we’ve lived 10+ miles apart for over 20 years…

          Perhaps, a parable…

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