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United States Law and Policy

In the United States, children have the same basic right to constitutional protection as adults.8 Children detained by the INS and placed in removal proceedings benefit from the U.S. Constitution’s most fundamental guarantees, including the Fifth Amendment’s directive that no person shall “be deprived of life, liberty, or property, without due process of law.”9

In addition, the U.S. Supreme Court has been careful to point out that children may require additional legal protection: “‘[C]hildren have a very special place in life which law should reflect. . . . [C]onstitutional principles [must] be applied with sensitivity and flexibility to the special needs of parents and children. . . . [While] children generally are protected by the same guarantees against government deprivation as are adults, the State is entitled to adjust its legal system to account for children’s vulnerability.’”10

Recent Changes to U.S. Immigration Laws

On a wave of public anti-immigrant sentiment, Congress overhauled the immigration laws twice in 1996, enacting the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in April and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) in September.11 These changes eliminated many of the statutory rights that immigrants had enjoyed for decades. Of particular concern for children apprehended by the INS, these amendments provide for the “expedited removal,” with no meaningful review, of those who were never properly admitted to the United States; place a one-year filing deadline and other limitations on most asylum applications; and purport to eliminate judicial review of discretionary decisions under the immigration laws.12

Even in the wake of these significant legal changes, unaccompanied minors apprehended by the INS may have a number of options. They may request “voluntary departure,” which requires them to leave the United States at theirown expense, within a certain period of time, and permits them to avoid the legal consequences of removal.13 Some unaccompanied minors may qualify to apply for asylum or receive the benefit of a provision known as “ withholding of removal.”14 Others may benefit from special programs which give permanent residence to some battered children or to some children who have been placed in foster care by a juvenile court.15 Less frequently, a child may be eligible for an extraordinary form of relief known as “cancellation of removal”16 or may demonstrate that he or she is a United States citizen.17 The evaluation of these possible options, the application process for each, and the level of documentation required to prevail are daunting for most adults. A child would find these options bewildering and virtually incomprehensible without the assistance of counsel.

Right to Counsel

Individuals in immigration proceedings have a right to counsel, but not at government expense.18 In general, constitutional due process guarantees protect against interference with the right to counsel in immigration proceedings and require that detainees be given a reasonable opportunity to secure legal representation.19 Further, although the courts have generally found that the government is not required to pay for counsel for adults in deportation or removalproceedings,20 there is a strong constitutional basis for asserting that the government has an obligation to provide counsel at government expense for indigent detained children in removal proceedings. This issue has not yet been addressed directly by the U.S. courts.

Based upon the due process guarantees of the Fifth and Fourteenth Amendments to the U.S. Constitution, the Supreme Court held in Gideon v. Wainwright that the government must provide free counsel for indigent defendants in adult criminal cases. In In re Gault, the court extended its holding in Gideon, finding that due process requires the government to provide lawyers for children in delinquency proceedings. Before the court’s decision in Gault, children did not receive counsel at government expense in delinquency proceedings because such proceedings were technically civil rather than criminal in nature. The court based its holding in Gault on the fact that children in juvenile delinquency proceedings have a strong liberty interest at stake.21 As the result of Gault, the right to government-appointed counsel does not turn upon technical distinctions between “civil” and “criminal” proceedings; instead, the right rests upon the seriousness of the proceeding’s consequences. In particular, the right to an attorney provided by the government depends upon whether there are important constitutionally recognized interests at stake.22

As with juvenile delinquency proceedings, removal proceedings are technically civil in nature, not criminal. The courts have recognized, however, that the consequences of removal from the United States are as grave as the consequences of many criminal proceedings. In the words of the United States Court of Appeals for the Sixth Circuit, “although it is not penal in character, deportation is a drastic measure, at times the equivalent of banishment or exile. . . .”23

Two federal courts of appeals have suggested that where a noncitizen’s rights would be substantially impaired in the absence of counsel, the government may be constitutionally required to pay for an attorney in immigration proceedings. The United States Court of Appeals for the Sixth Circuit has noted that “[w]here an unrepresented indigent alien would require counsel to present his position adequately to an immigration judge, he must be provided a lawyer at the Government’s expense. Otherwise, ‘fundamental fairness’ would be violated.”24 In a similar context, the United States Court of Appeals for the Ninth Circuit has held that “Congress’ treatment of indigent aliens . . . maynot be constitutional as applied in individual cases. The fifth amendment guarantee of due process applies to immigration proceedings, and in specific proceedings, due process could be held to require that an indigent alien be provided with counsel . . . .”25

If there is a strong argument for asserting that the government may at times be required by the U.S. constitution to provide legal counsel for indigent adult aliens in removal proceedings, the argument is still stronger as applied to unaccompanied minors. As one federal district court observed, unaccompanied children in INS custody “encounter a stressful situation in which they are forced to make critical decisions. Their interrogators are foreign and authoritarian. The environment is new and the culture completely different. The law is complex. . . . In short, it is obvious to the Court that the situation faced by unaccompanied minors is inherently coercive.”26 For this reason, Human Rights Watch believes that the United States government should provide counsel for indigent unaccompanied children who have been detained by the INS pending the outcome of removal proceedings.27

Detention Conditions and Release Options for Children

As with all INS detainees, children held in INS detention are being detained for administrative reasons, not as punishment for criminal behavior. As a result of the 1996 amendments to the immigration laws, detention is mandatory for those classified as “aggravated felons,” for certain other criminal aliens, and for asylum seekers awaiting final decisions on their cases.28 In addition, the INS faces particular concerns in the case of unaccompanied minors. As the U.S. Supreme Court has noted, “the INS cannot simply send [juveniles] off into the night on bond or recognizance.”29

Until the early 1980s, there was no codified INS policy governing the detention and release of unaccompanied minors. A class action suit initiated in 1985, ultimately known as Flores v. Reno, challenged the INS Western Region’s blanket detention policy for minors and the prison-like conditions of detention. The INS settled Flores in 1997 and issued interim regulations based on the settlement agreement in 1998.30 The settlement agreement and interim implementing regulations include the following provisions:

· As a matter of general policy, the INS will place detained children “in the least restrictive setting appropriate to the juvenile’s age and special needs, provided that such setting is consistent with the need to ensure the juvenile’stimely appearance before the [INS] or the immigration court and to protect the juvenile’s well-being and that of others.”31

· Upon apprehending an unaccompanied child who is not an “arriving alien,” the INS must provide the child with a written notice of rights. If the child is under fourteen, the INS must read and explain the form to the child in a language he or she understands.32

· An unaccompanied child who is apprehended in the immediate vicinity of the border and who resides permanently in Mexico or Canada must be “informed” of his or her right to call a parent, “close relative,” friend, or “an organization found on the current list of pro bono counsel”; after so advising the unaccompanied child, the INS may present him or her with a voluntary departure form. All other unaccompanied children must “be provided access to a telephone and must, in fact, communicate with a parent, adult relative, friend, or an organization found on the current list of pro bono counsel prior to presentation of the voluntary departure form.”33

· Following arrest, the INS will permit contact with family members who were arrested with the child.34

· The INS must separate unaccompanied children from unrelated adults, except that “[w]here such segregation is not immediately possible, an unaccompanied juvenile will not be detained with an unrelated adult for more than 24 hours.”35

· Unaccompanied children should not be transported in the same vehicles as detained adults “except when being transported from the place of arrest or apprehension to a Service office or when separate transportation would be otherwise impractical, in which case juveniles shall be separated from adults.”36

Children represented by counsel must not be transferred from one facility to another without advance notice to counsel “except in unusual and compelling circumstances such as where the safety of the juvenile or others is threatened, or the juvenile has been determined to be an escape risk, or where counsel has waived notice.” Under such circumstances the INS must give notice to counsel within twenty-four hours of transfer.37

International Standards

The United States has ratified the two principal international treaties that protect the human rights of detainees: the International Covenant on Civil and Political Rights (ICCPR), ratified in 1992, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified in 1994. These documents establish that under international law all individuals in INS custody, whether adults or children, have the right to be free from arbitrary detention and to be protected from cruel, inhuman, or degrading treatment.38

The ICCPR mandates that juvenile detainees must be “accorded treatment appropriate to their age,”39 a general rule which has been developed more fully in subsequent international documents on children. The most authoritative of these documents is the United Nations Convention on the Rights of the Child, which the United States signed in 1995.40 The convention recognizes that children are entitled to special care and assistance and that the best interests of the child must be a primary consideration in all actions concerning children.41 Article 37 of the convention extends specific protections to children deprived of their liberty. Under Article 37:

· no child shall be subjected to cruel, inhuman, or degrading treatment or punishment;the arrest and detention of a child must be “used only as a measure of last resort and for the shortest appropriate period of time”;
· every child deprived of his or her liberty shall be separated from adults, with the exception of unusual cases in which it is not in the child’s best interest to maintain such separation;
· in general, detained children have the right to maintain contact with their family through correspondence and visits;
· every child deprived of his or her liberty shall have the right to “prompt access to legal and other appropriate assistance,” the right to “challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority,” and the right “to a prompt decision on any such action.”

Other international standards, notably the U.N. Rules for the Protection of Juveniles Deprived of Their Liberty (U.N. Rules for the Protection of Juveniles), the Standard Minimum Rules for the Treatment of Prisoners, and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles), provide authoritative guidance for the interpretation of these treaties.42 Finally, the United Nations High Commissioner for Refugees’ Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (UNHCR Guidelines on Policies), the UNHCR Policy on Refugee Children, the UNHCR Guidelines on Detention of Asylum Seekers, and the recommendations of the Executive Committee of UNHCR provide additional assistance in complying with the international standards applicable to children in INS custody.43

8 In the landmark 1967 case In re Gault, the Supreme Court noted that “[n]either the Fourteenth Amendment nor the Bill of Rights is for adults only.” 387 U.S. 1, 13 (1967). The Supreme Court reaffirmed this principle in 1979, declaring that “a child, merely on account of his minority, is not beyond the protection of the Constitution.” Bellotti v. Baird, 443 U.S. 622, 633 (1979).

9 The U.S. Supreme Court has long recognized that most constitutional provisions are applicable to noncitizens, including those who enter the United States without inspection or who otherwise violate the immigration laws. As the Supreme Court declared in a 1953 decision, “[a]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.” Shaugnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953). Similarly, in Plyler v. Doe, the Supreme Court reaffirmed its commitment to protecting the right of aliens: “Whatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.” 457 U.S. 202, 210 (1981).

10 Bellotti, 443 U.S. at 634-35 (quoting May v. Anderson, 345 U.S. 528, 536 (1953) (concurring opinion of Justice Frankfurter)).

11 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Public Law No. 104-132, title IV, sections 401-443 (April 24, 1996), 110 Stat. 1258 (1996); Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law No. 104-208 (September 30, 1996), 110 Stat. 3009 (1996).

12 We discuss these recent changes to the immigration laws in greater depth in “Locked Away,” pp. 31-33. For an assessment of the expedited removal process, see Lawyers Committee for Human Rights, Slamming the ‘Golden Door’: A Year of Expedited Removal (New York: Lawyers Committee for Human Rights, April 1998).

13 8 C.F.R. sections 240.25 and 240.26.

14 Asylum is a discretionary form of relief from removal for those who establish past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Grants of asylum are governed by INA sections 208 and 101(a)(42)(A), codified at 8 U.S.C. sections 1158 and 1101(a)(42)(A). In December 1998, the INS released guidelines for adjudicating the asylum claims of children. INS, Office of International Affairs, Guidelines for Children’s Asylum Claims (December 10, 1998). See also Jaqueline Bhabha and Wendy A. Young, “Through a Child’s Eyes: Protecting the Most Vulnerable Asylum Seekers,” Interpreter Releases, vol. 75, pp. 757-73 (June 1, 1998). Withholding of removal, a related form of relief, is mandatory if an individual establishes that his or her life or freedom would be threatened upon return because of one of the five grounds of persecution (in contrast, eligibility for asylum requires only that such persecution be likely). INA, section 241(b)(3), codified at 8 U.S.C. section 1231(b)(3). Withholding may also be granted administratively to those who establish that they will be tortured if deported to the designated country of removal. See INS Office of Internal Affairs, Asylum Division, “Memorandum: Guidance on Compliance with Article 3 of the Convention against Torture,” April 27, 1998.

15 The Violence Against Women Act of 1994 provides for relief from deportation for some undocumented spouses and children who have been battered or subjected to extreme cruelty by a United States citizen or lawful permanent resident while in the United States. See Public Law No. 103-322, title IV, 108 Stat. 1902; 8 C.F.R. sections 103, 204, 205, and 216. See also Gail Pendleton, Immigration Law and Applications for Battered Immigrants Under the Violence Against Women Act (Boston: National Immigration Project of the National Lawyers Guild, October 1998).

Some children who have been declared dependent on a juvenile court or placed with a child welfare agency may qualify for special immigrant juvenile status, which permits them to apply for permanent residence. See generally Katherine Brady, Jan Austerlitz, and Kim Pederson, Special Immigrant Juvenile Status for Children in the Dependency System (San Francisco: Immigrant Legal Resource Center, 1997).

16 This form of relief can only be granted to individuals who establish at least ten years’ physical presence in the United States; good moral character; and “exceptional and extremely unusual” hardship to a U.S. citizen or permanent resident spouse, parent, or child. Even if all of these conditions are met, relief from removal under this provision is discretionary. INA, section 240A(b), codified at 8 U.S.C. section 1229b(b). See Dan Kesselbrenner and Lory D. Rosenberg, Immigration Law and Defense, 3rd edition (Deerfield, Ill.: West Group, 1998).

17 While citizenship by birth in the United States is generally straightforward, U.S. citizenship can be acquired by operation of law in other ways, usually through birth abroad to a U.S. citizen parent or upon the naturalization of one or both parents. See generally Robert A. Mautino, “Acquisition of Citizenship,” Immigration Briefings, April 1990, pp. 1-28.

18 Immigration and Nationality Act (INA), section 240(b)(4)(A), codified at 8 U.S.C. section 1229a(b)(4)(A), provides that an “alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing who is authorized to practice in [removal] proceedings.”

19 For a thorough discussion of the development of immigration detainees’ right to legal counsel and current obstacles to representation, see Margaret H. Taylor, “Promoting Legal Representation for Detained Aliens,” Connecticut Law Review, vol. 29, p. 1647 (Summer 1997).

20 See, for example, Murgia-Melendez v. I.N.S., 407 F.2d 207, 209 (9th Cir. 1969); Tupacyupanqui-Marin v. I.N.S., 447 F.2d 603, 606 (7th Cir. 1971). These decisions did not resolve the constitutional issues raised by the immigration law’s explicit limitation that counsel in removal proceedings must be at no expense to the government. The Sixth Circuit has noted that fundamental fairness may be violated by failure to provide an unrepresented indigent alien with counsel at the government’s expense. Aguilera-Enriquez v. I.N.S., 516 F.2d 565 n.3 (6th Cir. 1975), cert. denied, 423 U.S. 1050 (1976). In a nuanced decision, the Second Circuit has held that lack of appointed counsel does not violate due process where the noncitizen admits the allegations of deportability and it does not appear that an attorney would affect the outcome of the case, implying that appointed counsel may be required under some circumstances. See Henriques v. I.N.S., 465 F.2d 119, 121 (2d Cir.), cert. denied, 410 U.S. 968 (1972).

21 In re Gault, 387 U.S. at 46.

22 See, for example, Aguilera-Enriquez v. I.N.S., 516 F.2d 565 n. 3 (6th Cir. 1975).

23 United States ex rel. Brancato v. Lehmann, 239 F.2d 663, 666 (6th Cir. 1956). Similarly, another court of appeals noted that “deportation is not a criminal action, but the consequences may more seriously affect the deportee than a jail sentence. The liberty of the individual is at stake and ‘meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standard of fairness.’” Johns v. Department of Justice of the United States, 624 F.2d 522, 524 (5th Cir. 1980).

24 Aguilera-Enriquez, 516 F.2d at 565 n. 3. The court distinguished prior decisions “which contain dictum appearing to set forth a per se rule against providing counsel to indigent aliens facing deportation” on the ground that they “rested largely on the outmoded distinction between criminal cases (where the Sixth Amendment guarantees indigents appointed counsel) and civil proceedings (where the Fifth Amendment applies).” Ibid. Despite this analysis, the Aguilera-Enriquez court did not direct the government to provide counsel in the case before it because it found that “[c]ounsel could have obtained no different result.” Ibid., p. 516.

25 Escobar-Ruiz v. I.N.S., 787 F.2d 1294, 1297 n.3 (9th Cir. 1986), affirmed en banc, 838 F.2d 1020 (1988). In Escobar-Ruiz, an en banc court of eleven judges upheld the initial decision of a three-judge panel, noting that “deportation proceedings are difficult for aliens to fully comprehend, let alone conduct, and individuals subject to such proceedings frequently require the assistance of counsel.” 838 F.2d at 1026.

26 Perez-Funez v. I.N.S., 619 F. Supp. 656, 662 (C.D. Cal. 1985).

27 For an analysis of this argument in greater depth, see Slipping Through the Cracks, pp. 19-23.

28 IIRIRA, section 303(b) (transition custody rules); INA, sections 236(c) (detention of criminal aliens) and 235(b)(1)(B)(iii)(IV) (detention of asylum seekers). For discussions of these mandatory detention provisions, see “Locked Away,” pp. 15, 30-33; Daniel Kerwin, “Detention of Newcomers: Constitutional Standards and New Legislation,” Immigration Briefings, December 1996, p.1; Daniel Kerwin, “Throwing Away the Key: Lifers in INS Custody,” Interpreter Releases, vol. 75, p. 649 (May 11, 1998). In cases in which the mandatory detention rules do not apply, “an alien generally . . . should not be detained or required to post bond except on a finding that he is a threat to the national security or that he is a poor bail risk.” Reno v. Flores, 507 U.S. 292, 295 (1993).

29 Reno v. Flores, 507 U.S. at 295.

30 The comprehensive agreement sets out nationwide police for the detention, release, and treatment of children in INS custody. Flores Settlement Agreement, p. 6. The interim regulations were published in July 1998. “Processing, Detention, and Release of Juveniles,” Federal Register, vol. 63, p. 39,759 (July 24, 1998) (amending 8 C.F.R. section 236.3). For a brief account of the Flores litigation, see Slipping Through the Cracks, pp. 23-26. For a discussion of constitutional challenges to INS detention conditions generally, see Margaret H. Taylor, “Detained Aliens Challenging Conditions of Confinement and the Porous Border of the Plenary Power Doctrine,” Hastings Constitutional Law Quarterly, vol. 22, p. 1807 (Summer 1995).

31 Flores Settlement Agreement, pp. 8-9, 12-15; 8 C.F.R. section 236.3(d). For a discussion of the conditions under which the INS may place children in secure detention, see “The Standards for Placing Children in Secure Detention.”

32 8 C.F.R. section 236.3(c)(2). See also Flores Settlement Agreement, pp. 7-8.

33 8 C.F.R. section 236.3(c)(3).

34 Flores Settlement Agreement, p. 8; 8 C.F.R. section 236.3(d)(1).

35 Flores Settlement Agreement, p. 8; 8 C.F.R. section 236.3(d)(1).

36 Flores Settlement Agreement, pp. 15-16; 8 C.F.R. section 236.3(i)(1).

37 Flores Settlement Agreement, p. 16; 8 C.F.R. section 236.3(i)(4).

38 International Covenant on Civil and Political Rights (ICCPR), G.A. Res. 2200A (XXI), 999 U.N.T.S. 171 (opened for signature Dec. 19, 1966; entered into force Mar. 23, 1976); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. Doc. A/RES/39/46, 1465 U.N.T.S. 85 (adopted December 10, 1984; entered into force June 26, 1987).

Article 10(1) of the ICCPR establishes that “all persons deprived of their liberty shall be treated with humanity and withrespect for the inherent dignity of the human person,” and Article 7 of the ICCPR provides that “[n]o one shall be subjected to cruel, inhuman or degrading treatment or punishment.” Articles 11 and 16(1) of the Convention against Torture obligate the United States to undertake to prevent torture or cruel, inhuman, or degrading treatment while in detention.

39 ICCPR, Article 10(3).

40 As a signatory to the Convention on the Rights of the Child, the United States is obligated to refrain from acts which would defeat the object and purpose of the treaty. Vienna Convention on the Law of Treaties, Article 18(a), 1155 U.N.T.S. 331 (concluded May 23, 1969; entered into force January 27, 1980). The United States is one of only two countries which has not ratified the Convention on the Rights of the Child; the other is Somalia, which has no effective government.

41 Convention on the Rights of the Child, Article 3(1), G.A. Res. 44/25, U.N. Doc. A/RES/44/25 (adopted November 20, 1989; entered into force September 2, 1990).

42 U.N. Rules for the Protection of Juveniles Deprived of Their Liberty (U.N. Rules for the Protection of Juveniles), G.A. Res. 45/113, U.N. Doc. A/45/49 (1990); Standard Minimum Rules for the Treatment of Prisoners, U.N. ECOSOC Res. 663C (XXIV), U.N. Doc. E/3048 (1957), amended by ECOSOC Res. 2076, U.N. Doc. E/5988 (1977); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles), G.A. Res. 43/173, U.N. Doc. A/43/49 (1988).

43 UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (February 1997); UNHCR, Policy on Refugee Children, U.N. Doc. EC/SCP/82 (October 1993); UNHCR Guidelines on Detention of Asylum Seekers (January 29, 1996). See also UNHCR, Refugee Children: Guidelines on Protection and Care (Geneva: UNHCR, 1994). UNHCR is currently in the process of revising the guidelines to suggest alternatives to detention and recommend that unaccompanied minors should never be detained , among other revisions.

The Executive Committee of UNHCR has repeatedly emphasized that all actions taken on behalf of refugee children must be guided by the “best interests of the child” principle. Conclusion No. 47 (XXXVIII), Refugee Children, 1987; Conclusion No. 59 (XL), Refugee Children, 1989; Conclusion No. 84 (XLVIII), Conclusion on Refugee Children and Adolescents, 1997. More generally, the Executive Committee has stated that detention must be humane. Whenever possible, asylum seekers should “not be accommodated with persons detained as common criminals, and shall not be located in areas where their physical safety isendangered.” Conclusion No. 44 (XXXVII), Detention of Refugees and Asylum Seekers, 1986. Further, asylum seekers, including minors, should not be detained on an arbitrary basis or for unduly long periods, nor should they be detained without “adequate access to UNHCR and to fair procedures for timely review of their detention status.” Conclusion No. 85 (XLIX), Conclusion on International Protection, paragraph (dd).

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