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.
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.