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- Title
A Constitutional Right to Appointed Counsel for the Children of America's Refugee Crisis.
- Authors
Hanna, Andrew Leon
- Abstract
Despite their remarkable courage, children fleeing persecution to America's southern border are among the most vulnerable individuals in our society. Seeking compassion and fairness in the midst of a refugee crisis, these children instead meet a system that is all-too callous and unbending. C.J. was no different. Facing death threats from a gang at home in Honduras, C.J. and his mother Maria travelled 3,000 treacherous miles to America. Maria did her best to speak on behalf of her son in immigration court--despite limited English proficiency, no legal background, and no assistance--but the immigration judge rejected C.J.'s pleas for relief. In early 2018, the Ninth Circuit ruled against C.J. as well, holding that immigrant children facing deportation do not have a right to appointed counsel; in doing so, it became the first court to state that it is constitutionally permissible for children to be forced to represent themselves in removal proceedings. However, opening a window of hope for children asylumseekers, the Ninth Circuit recently took the significant step of withdrawing the initial panel's decision and electing to rehear C.J.'s case en banc. The initial panel was incorrect; the Fifth Amendment, when carefully considered in light of today's realities, compels a right to appointed counsel for immigrant children facing the prospect of deportation. The "fundamental fairness" principle and human dignity value underlying Fifth Amendment procedural due process point to a need for children to be represented by attorneys in order to have meaningful voices. And a thorough analysis under the Supreme Court's procedural due process test demonstrates that the only way to ensure children with legitimate claims are not turned away in significant numbers is to provide a right to appointed counsel. Yet, because this right has not been recognized, tens of thousands of children today are deprived of the fair hearings to which they are constitutionally entitled. The Ninth Circuit now has a historic opportunity to right this wrong. When it reconsiders C.J.'s case in the near future, it should reject the initial panel's reasoning and instead chart a path that respects the due process rights of those who most need the protection of a fair justice system. And in the midst of unprecedented executive action curtailing the rights of asylum-seekers and utter legislative inaction in response, now is a pivotal time for our courts to recognize this right to appointed counsel. Ultimately, the lives of children like C.J.--and truly the heart and grace of the American justice system--depend on it.
- Subjects
UNITED States; APPOINTED counsel; LEGAL status of refugee children; CONSTITUTIONAL law; DEPORTATION; UNITED States. Constitution. 5th Amendment; LEGAL status of immigrant children; LEGAL assistance to refugees
- Publication
Harvard Civil Rights-Civil Liberties Law Review, 2019, Vol 54, Issue 1, p257
- ISSN
0017-8039
- Publication type
Article