The Sixth Amendment to the U.S. Constitution guarantees the right to counsel for all criminal defendants, including undocumented immigrants. However, since deportation hearings are considered civil proceedings, undocumented immigrants are not guaranteed a lawyer when they face deportation.
If they cannot afford a lawyer, undocumented immigrants are not given a court-appointed one. While lack of counsel hinders many people, it is especially important in the case of undocumented children. This issue must be dealt with in a timely fashion as the United States as a whole is facing large numbers of immigrants crossing the U.S.-Mexico border.
In 2021 alone, around 147,000 unaccompanied minors crossed the border, an earth-shattering record. In Connecticut as of 2019, there were approximately 7,000 undocumented juveniles out of a total population of 113,000 undocumented immigrants.
The United States Constitution clearly recognizes the importance of the right to counsel, yet nearly 77% of immigration cases in 2019 had no legal representation. Having a lawyer is imperative, especially for children who do not understand their rights or their legal options. Furthermore, many undocumented juveniles might not speak English, adding to their difficulties in understanding what is happening to them. This is especially important for children who do not have a parent or guardian to accompany them to court.
A 2014 study by Syracuse University found that among unaccompanied children with representation, 73% of them were allowed to remain in the United States, while only 15% of unrepresented children were allowed to stay. This data reveals that when undocumented immigrants have the tools necessary to make their case, the government decides that many of them have the right to remain in the United States.
Without representation, undocumented children are unable to articulate their cases to stay. Another study by Syracuse University from 2005-2016 showed that 95% of children with a lawyer appeared when their case was decided in immigration court, while only 33% of those without representation appeared. This data thus shows that having a lawyer not only helps the children facing deportation, but also helps the process move more smoothly and justly.
The main argument against this proposal is that undocumented immigrants chose to enter the United States illegally and should not have the same rights as citizens during their deportation trials. However, even undocumented immigrants are guaranteed to counsel during criminal trials.
Just like criminal cases, immigration proceedings profoundly impact people’s lives. Even though they are not being sent to jail, many deported immigrants are forced to return to areas of gang violence, drug violence, or severe conditions of oppression. The severity of deportation thus warrants that an undocumented immigrant have access to all the necessary resources to defend themselves, just as they would in a criminal trial.
Furthermore, in this proposal, the focus is on juvenile undocumented immigrants. Within the American criminal justice system, juveniles are separated from the general population. Children should not be treated as adults under any legal proceedings, especially in immigration cases that can often alter the course of a child’s livelihood. No child should ever be forced to represent themselves in deportation cases, in a foreign country that they have no knowledge of.
When the U.S. federal government separated children from their parents on the border with Mexico, the public and members of the government itself were outraged, as they ought to be. At that time, we recognized that all children, no matter their nationality or citizenship, must be treated as children, with the same care that would be provided to American children. Connecticut must do the same, in leading the nation to protect children facing deportation by at least giving them the opportunity to fight for a better future.
Tioné Hoeckner is a member of the Yale Democrats.