In recent weeks, Americans have been inundated with stories about the surge in children from Central America and Mexico arriving at the southern US border. Forty-seven thousand unaccompanied minors, including those as young as four or five years old and and even infants and toddlers, have come across the border in the past eight months, and agency officials predict that up to 90,000 may arrive by the end of September, up from 13,000 in 2012. Along with these unprecedented numbers has come an unprecedented response: The Obama administration has announced funding to nonprofit organizations to hire attorneys to represent unaccompanied children.
This new program, Justice AmeriCorps, is an important first step in addressing a particularly shameful problem within the American legal system. It is difficult to imagine a more compelling case for appointed counsel than a 5-year-old appearing on her own in immigration court, facing off against an attorney from the Department of Homeland Security. Yet even as we applaud the president for this groundbreaking program, we might ask ourselves, and our government, why a person of any age should be expected to go up against a highly trained government attorney in such a high-stakes proceeding without the benefit of legal counsel.
Our immigration laws are famously complex, and deportation can have dire consequences, tearing longtime US residents from their families and returning new arrivals to countries in which they may face persecution or death. Yet the courts have always categorized removal proceedings as civil rather than criminal, and have declined to recognize a right to appointed counsel along the lines of the Sixth Amendment right to counsel afforded to criminal defendants. Eighty-four percent of detained immigrants go through removal proceedings without an attorney.
Numerous studies have shown that legal representation is often the deciding factor in the outcome of a removal proceeding: according to one study of detained immigrants in New York City, those with lawyers were six times more likely to win their case than those without lawyers. My own research on wrongly deported US citizens, along with related research by Professor Jacqueline Stevens at Northwestern University, reveals that lack of legal representation virtually always plays a role when our immigration enforcement system commits egregious errors. It is worth noting how some of these errors have come to light: US citizens who have been wrongly deported have been caught attempting to return to the United States and have been charged with the criminal offense of illegal reentry. As criminal defendants, they are entitled to a government-appointed lawyer, and it is only then, ironically, that they are able to prevail — with the assistance of counsel — on the citizenship claims that should have been recognized in removal proceedings.
Like unaccompanied children, deported US citizens attract media attention. But their cases reveal systemic problems that also impact the much broader range of people who fill our nation’s immigration courts and detention centers. These include refugees, victims of domestic violence and other crimes, and others who may be entitled to relief under our immigration laws. Providing counsel to all of these people would of course cost money. However, there are also enormous costs to maintaining a system in which people are denied counsel. The financial costs of the current system include lengthy detentions and inefficient proceedings that have led to enormous backlogs in immigration courts across the country.
And the human costs, to those in removal proceedings and to society as a whole, are incalculable.
Rachel E. Rosenbloom is a member of the faculty at Northeastern University School of Law.