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Do Children Facing Deportation Have a Right to a Court-Appointed Lawyer?

Child Facing Deportation with American Flag, Held by her Father

A recent decision by the Ninth Circuit Court of Appeals answered the question, "do children facing deportation have a right to a court-appointed lawyer?" Shockingly, the answer was "no." In other words, the Court of Appeals determined that immigrant children are able to represent themselves in court.

A panel of the Ninth Circuit Court of Appeals heard the case of C.J.L.G. v. Jefferson B. Sessions III. C.J. was a fifteen year old Honduran boy who had fled to the United States with his mother when he was thirteen years old, after a member of the Mara gang in his hometown of San Pedro Sula put a gun to his head, threatening to kill him if he did not join them. When they learned he had told his mother about their recruitment efforts, they threatened to kill his family. Similar threats are commonplace in Honduras, and San Pedro Sula is one of the most dangerous cities in that dangerous country.

The holding in the case essentially means that the court believes children are capable of representing themselves in court, even when essential legal rights hang in the balance. In this particular case, C.J. was seeking asylum. In asylum cases, the stakes are literally life and death, and the law highly complex. Add to the mix the fact that petitioners are not only young, but often poorly educated and not native speakers of English. On top of that, the government's case is presented by experienced, well-trained prosecutor who has successfully argued for the deportation of hundreds or thousands of undocumented immigrants. Without counsel of his or her own, a child stands almost no chance of success.

The Case of C.J.L.G. v. Sessions

The immigration judge (IJ) in C.J.'s case denied his application for asylum, withholding of removal, and Convention Against Torture (CAT) relief. The application was completed by C.J. and his mother. The denial was based on C.J's failure to show that he had suffered harm tantamount to persecution and failure to show "credible, direct and specific evidence...that would support an objectionably (sic) reasonable fear of persecution should he return to Honduras." C.J. had also failed to show that he was the member of a protected group or that the Honduran government was unwilling or unable to control the Mara gang. Having failed to meet the criteria for asylum, C.J. necessarily failed to meet the more stringent criteria for withholding of removal. As to the request for CAT relief, the IJ stated that C.J. failed to meet the burden of showing that anyone in Honduras would seek to torture him, and certainly not anyone with the government's acquiescence.

With the assistance of an attorney, C.J. might have been able to understand the legal standards he needed to meet to be granted asylum, and adequately convey the information to meet those criteria. Since his mother had been unable to afford an attorney, he simply conveyed the truth, in broken English, that he was terrified the gang would kill him if he returned, as it had repeatedly threatened, quite credibly, to do.

C.J.'s appeal argued that the Immigration and Nationality Act's (INA) fair hearing provision requires, implicitly, that alien minors be granted court-appointed counsel at government expense. The panel rejected this argument, and further held that the IJ was not required to tell C.J. that he might qualify for Special Immigrant Juvenile status because, at the time, he lacked a state court order that would have made him apparently eligible for such status.

While the panel concluded that C.J. was not entitled to court-appointed counsel at government expense, a concurring judge noted there had been no discussion of whether the Due Process Clause would mandate such counsel for unaccompanied minors.

Implications for Undocumented Minors

El Salvador, Guatemala, and Honduras have seen over 100,000 children flee to the United States in the past several years. As conflicts between gangs and between gangs and police have grown more violent and explosive, those three countries have achieved the dubious distinction of having some of the highest murder rates of all countries.

Of those children who have come to the U.S., approximately half have had attorneys representing them in their immigration cases. Those who have no representation have less than a ten percent chance of being permitted to remain in this country. The more complex the case, such as an asylum case, the less likely a child will be able to win it without representation. Of course, representation does not guarantee success, but at least one report has indicated that adult immigrants who are represented are five times more likely to be successful in immigration matters than those who are unrepresented. It seems reasonable that the increased likelihood of success would be as great, or greater, for minors who have representation versus those who do not.

The outcome in C.J.L.G. v. Jefferson B. Sessions III is disheartening and unreasonable. We can only hope that the panel's decision will be reviewed by the entire Ninth Circuit or the United States Supreme Court and overturned. In the meantime, the best option for minors hoping to remain free from the dangers they fled in their home country is to retain an experienced immigration attorney.

Categories: Immigration Law