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S. 662: Fair Day in Court for Kids Act of 2019

Should undocumented children have a guaranteed right to a lawyer during their deportation trial?

Context and what the bill does

When undocumented people are caught crossing the U.S.-Mexico border, they’re sent to immigration court. But only about 32 percent of undocumented children caught are represented by a lawyer.

And that can make all the difference. More than 80 percent of such unrepresented children were deported, while only 12 percent of represented children were. After all, children almost never the intricacies of the legal system — or even English at all.

The Fair Day in Court for Kids Act would provide all unaccompanied children with legal representation when appearing in immigration court or removal proceedings.

It was introduced in the Senate on March 5 as bill number S. 662 by Sen. Mazie Hirono (D-HI), the only current immigrant in the Senate.

What supporters say

Supporters argue the legislation allows the right to counsel even for the undocumented, similar to how American citizens already have the right to at attorney during criminal trials thanks to the Sixth Amendment.

“Unaccompanied children are seeking a better life away from violence, abuse, and terror in their home countries,” Sen. Hirono said in a press release. “The [bill] provides these children with an opportunity to tell their stories and assert what legal rights they have. These children should not be expected to represent themselves alone against the federal government, as they are some of the most vulnerable people in our legal system.”

What opponents say

Opponents counter that the right to counsel for unaccompanied children is not applicable in this particular context because immigration courts are civil in nature.

“The Supreme Court has repeatedly rejected the notion that deportation is punishment, and the Sixth Amendment right to counsel is therefore not applicable in removal proceedings,” Benjamin Good wrote in the Stanford Journal of Civil Rights & Civil Liberties.

The original Supreme Court decision affirming this principle was 1893’s Fong Yue Ting v. United States, which although more than a century old still stands as precedent to this day.

Odds of passage

The bill has attracted 21 Senate cosponsors, all Democrats or Democratic-affiliated independents. It awaits a potential vote in the Senate Judiciary Committee.

Could it attract Republican support too? After all, it was the _bipartisan _outcryover the Trump Administration’s 2018’s “zero tolerance” policy at the border — in which children were separated from their parents while detained — that made Trump reverse course. But no Republicans have yet signed on as cosponsors to this bill.

Last updated Apr 1, 2019. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Mar 5, 2019.

Fair Day in Court for Kids Act of 2019

This bill authorizes the Department of Justice (DOJ) to appoint or provide counsel, at the government's expense, to aliens in removal proceedings and related appeals. An unaccompanied alien child shall be represented by counsel paid for and appointed by the government at every stage of such proceedings.

The Department of Homeland Security (DHS) shall provide a complete copy of an alien's immigration file to the alien (or the alien's counsel) within seven days of a notice to appear for an immigration proceeding, and failure to provide the file shall result in a delay in the proceeding. DHS shall provide access to counsel for all detained aliens.

The bill authorizes the DOJ to enter into contacts or award grants for providing immigration-related legal services to children. The Executive Office for Immigration Review shall develop model guidelines for representing alien children in immigration proceedings.