Last week, a federal judge in California ordered immigration courts in three states to provide legal representation for immigrants with mental disabilities who are in detention or facing deportation.
This happened the day after federal immigration officials issued a new policy that would effectively expand that ruling, making government-paid legal representation available to people with mental disabilities in immigration courts in all states.
This is a common-sense move to provide protection to the most vulnerable of a class of people — immigrants facing deportation — who don’t have the right to a lawyer if they can’t afford one.
Now that such an important precedent has been set, it is imperative that the government move quickly to ensure that minors get similar protections.
As it stands now, children under 18 without a parent or guardian are forced to navigate the immigration detention process alone. Even children who are little more than toddlers are expected to appear before immigration judges to defend themselves in legal proceedings if they can’t secure a lawyer.
According to the Vera Institute of Justice, a New-York-based non-governmental criminal justice research and policy organization, from Oct. 1, 2008, through Sept. 30, 2010, the Office of Refugee Resettlement, an agency of the Department of Health and Human Services, reported that 13,945 immigrant children were admitted into its Division of Unaccompanied Children’s Services. Sixteen percent of these kids were 12 and under.
“The recent litigation to protect individuals who cannot defend themselves in court set us up to connect the dots to children,” said Wendy Young, president of the Washington, D.C.-based legal advocacy organization Kids in Need of Defense (KIND).
“Extending these protections to children is the natural next step. These, too, are individuals unable to understand the proceedings they are involved in. We’ve represented children as young as 2 years old and it’s really a travesty of justice — the judges are almost as distressed as the children when they see young kids coming in to court without counsel.”
According to KIND, each year more than 8,000 unaccompanied children come to the U.S. alone, many of them escaping abuse or persecution, or as victims of trafficking, abandonment or severe deprivation. They’re expected to face the courts without counsel even though most children can’t understand the complex procedures or the options open to them. And there’s almost always a language barrier.
With the right legal representation, many of these children — about 40 percent in 2010, according to the Vega Institute — would qualify for some form of relief from removal.
KIND, like other organizations, such as the Immigrant Children’s Assistance Project of the American Bar Association, provides pro bono legal assistance to detained, unaccompanied children and trains lawyers to take up these complex cases.
As with any other proposal for immigration system relief, the first question raised by doubters is how much it would cost to provide such services.
“You have to remember that we’re talking about a very small slice of the 11 million undocumented immigrants on which most of our attention is focused,” Young told me. “Even though we’re seeing an increase in the numbers of children in this situation, the cost would be a fairly modest amount, to be perfectly honest. Because we’re talking about a private-public partnership, we’re only looking at a range of $15 million to $28 million per year, depending on the fluctuation in the numbers.”
To put that in context, though at the high end $28 million isn’t chump change, it’s also a relative pittance within the Department of Justice’s $27.1 billion budget request for fiscal year 2013. And the benefits would ripple far beyond cases involving minors.
“It would help the courts become more efficient,” said Young. “Rather than have kids coming in at multiple times, it would be much faster if they had counsel from the get-go so their cases could move ahead quicker.”
This is not a pie-in-the-sky dream. According to Young, the comprehensive immigration reform proposal being developed in the Senate includes a provision that would require the Department of Justice to appoint counsel in cases where such immigrant minors were unable to access pro bono services.
If there’s a shred of humanity in the legislators who negotiate the final compromise, this suggested protection will not end up on the cutting room floor.