The Unconstitutionality of the U.S. Government's Failure to Provide Legal Representation for Unaccompanied Minors in Immigration Proceedings

This research paper discusses the unconstitutionality of the U.S. government's failure to provide legal representation for unaccompanied minors in immigration proceedings. It explores the violations of the 5th Amendments Due Process clause and the Immigration and Nationality Act of 1965, and argues for the importance of providing legal counsel for these children. The paper also examines the rights and protections afforded to alien minors under the Constitution and the INA, and the consequences of not having legal representation in immigration court.

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Professor’s Name
Business & 201
Research Paper
June 5, 2019
The U.S. government’s failure to provide legal representation for unaccompanied minors
in immigration proceedings is unconstitutional. It violates the 5th Amendments Due Process
clause and the Immigration and Nationality Act of 1965. It also violates the 6th Amendments
Assistance of Counsel clause.
Government’s failure violates the 5th Amendments Due Process clause.The Due Process
Clause present in the 5th Amendment states that “No person shall be deprived of life, liberty, or
property, without due process of law” (U.S. Const. Amend. V). The 5th Amendment guarantees
that no individual shall be deprived liberty. Live, or property in the absence of the due process.
Aliens-including those individuals that have remained or entered in the US in breach of the
federal immigration law-have been established to be included by the Fifth Amendment’s usage
of “person” where the removal may be seen as implicating an alien’s interest in liberty. The Due
Process Clause manages the administration of justice to ensure the right and equality of all
people. The Supreme Court has established that non-citizens outside the “territorial borders” of
the US are not entitled to constitutionally consented due process rights; however, those in the
country get constitutional safeguards, comprising due process. In the Yamataya v. Fisher, the
Supreme Court held that due process comprise the righty to be heard on questions that involve
the right to be and remain in the US and the contemporary Supreme Court verdicts have declared

that even non-citizens whose presence in the country is unlawful, or transitory are eligible for
protection from deprivation of life, property or liberty without due process (Chen & Gill, 2015).
There are 2 types of Due Process, procedural and substantive. Procedural due process refers to
the idea that the government is required to follow procedures to ensure a full and fair hearing
before depriving a person of life interest. In this scenario, the life interests of alien minors are
threatened to be deprived, as these children’s future depends on their ability to live in the US.
Many have fled their home countries due to inhospitable living conditions, and others are
fighting to remain in the US to maintain their family, home, and school life (Jie, 2018).The
interests at stake are substantially high and returning these children to their home countries that
they have fled from may not be in their best interest. Additionally, the consequences of
deportation also impact their future life interests, as the repercussions not only include bars from
future attempts of reentry, but the potential of facing criminal prosecution for their attempt, even
if they were eligible for a legal visa. Hence, alien minors are entitled to the Constitutional right
of Due Process based on their life interests. These rights include notice of hearing, the right to
present evidence, and the opportunity to contend against the charges against them. This idea is
further supported through the Supreme Court case Reno vs. Flores 1993, wherein Justice
O’Connor’s concurrence described that alien children also have rights protected by the
Constitution. However, in immigration proceedings, their Due Process rights are meaningless
without an attorney because they are not competent to exercise them. In In re Gault 1967, the
court argued that the juvenile needs the assistance of counsel to cope with problems of law, to
make skilled inquiry into the facts, to insist upon regularity of the proceeding, and to ascertain
whether he has a defense and to prepare and submit it. The child requires the guiding hand of
counsel at every step in the proceedings against him. Therefore, due to the significance of the

interest at stake and the Constitutional rights recognized by the court, the Constitution urges that
alien minors are granted the protection of appointed counsel at the government’s expense.
Government’s failure violates the Immigration and Nationality Act of 1965. Alien
minor’s right to appointed counsel is also extended through the INA (Immigration and
Nationality Act of 1965). Under the INA, aliens are given the right to a full and fair hearing,
wherein they are given the burden of proof to argue against deportation and request forms of
relief to remain in the US (8 U.S. Code § 1229a). Section 292 of the Immigration and Nationality
Act of 1965 or INA in general governs the right of alien to counsel, but other provisions of the
INA or related statutes deal with the rights of specific groups of aliens (for example, children) or
the rights of aliens in specific types of removal proceedings (such as expedited removal under
Section 238 of the INA). Children who have been detained can request for a SIJS (Special
Immigrant Juvenile Status), which is available for a child who is unable to reunite with a parent
due to abuse, neglect, or abandonment. They can also request a U-Visa, which are available for
child victims of serious crimes that could assist an investigation or prosecution in exchange for
the visa. Lastly, T-Visas are also available for children who suffer from severe human
trafficking. Nonetheless, these rights given to alien minors are worthless without legal counsel,
as they cannot be expected to attain any forms of relief independently. Acquiring any form of
relief requires the child to satisfy the specific qualifications as well as follow the appropriate
procedures for submitting and filing their applications whilst providing strong supporting
evidence. Even if the children are qualified for some form of relief, they face a daunting
administrative process that requires extensive knowledge of the law. In reality, they lack the
intellectual capacity to comprehend these complex procedures enough to achieve any beneficial
outcome (Metcalf, 2011).The importance of legal representation is evident, as only 2% of

immigrants without legal counsel succeed in immigration court. In contrast, 21% of cases with
legal representation successfully terminate their case or obtain relief (Eagly & Shafer, 2015).
Thus, immigrants who are able to obtain counsel are ten and a half times more likely to succeed
in court. This substantial disparity clearly demonstrates that immigrants without counsel are at a
tremendous disadvantage. Without an attorney, immigrants are unable to secure legal relief that
they could have been eligible for, which is worrisome as only 37% of immigrants are represented
by an attorney (Eagly & Shafer, 2015). Therefore, it is evident that the outcome of these
adjudications is fundamentally unfair, as unqualified immigrants are pitted against skillful
government prosecutors with the expectation of achieving justice. This situation is even more
problematic when the immigrants in question are children.
The courts have more often declined to establish that indigent aliens have a 6th
Amendment right to counsel at the government expense in regard to removal proceedings. The
6th Amendment right to counsel to appointed counsel for indigent individuals is applicable only
in criminal proceedings and not in civil proceedings like removal. Those who afford this right
often stress the grave consequences, which being removed from the US may have for aliens.
Government’s failure also violates the 6th Amendments Assistance of Counsel clause.
Furthermore, alien minors in immigration courts are entitled to legal counsel based on the 6th
Amendments Assistance of Counsel Clause (Wynne, 2017). The clause explicitly states that the
right to appointed counsel at the government’s expense exclusively applies to criminal
prosecutions (U.S. Const. Amend. VI); however, under US law, Immigration Law is considered
civil and not criminal. Violating immigration laws results in deportation, which US law, does not
perceive to be considered punishment. Deportation is not recognized as punishment because it is
simply an administrative process which guarantees that people follow the terms of their visas

(Fong Yue Ting vs. United States1893). Nevertheless, while the definition of deportation
classifies immigration courts as civil, they profoundly resemble criminal courts instead. An
individual may end up in immigration court due to an arrest, they can be detained while awaiting
hearing, and they are arguing against the government (Tanenhaus, 2017). As a result, aliens in
immigration court should be entitled to the assistance of counsel due to the criminal nature of the
courts. This claim is further supported in the Supreme Court Case In re Gault 1967, wherein the
court declared that individuals in juvenile court, which are civil, are entitled to have a 6th
Amendment right to counsel. The court argued that juvenile proceedings greatly resembled
criminal proceedings, as the outcomes of the adjudications have tremendous consequences.
Therefore, children in immigration courts should also be given the right to counsel, as it has been
previously established that the outcomes of immigration court have tremendous consequences as
well.
In conclusion, it is unlawful for the government to not provide unaccompanied minors
legal representation in immigration proceedings based on the 5th Amendments Due Process
clause, the Immigration and Nationality Act, and the 6th Amendments Assistance of Counsel
clause.These Federal statutory and Constitutional laws clearly imply that children should be
given legal counsel in any form of judicial proceeding to ensure justice; therefore, immigration
proceedings should not be excluded. The Supreme Court themselves have recognized that for
children facing considerable consequences in court, “the right to representation by counsel is not
a formality. It is not a grudging gesture to a ritualistic requirement. It is the essence of justice.”
(Kent vs. United States 1966). Furthermore, apart from the legal and ethical merits of providing
children counsel, it will also provide other benefits as well, as the assistance of counsel will
undoubtedly expedite the legal proceedings of a case by reducing misunderstandings and

mistakes. Ultimately, providing an attorney will substantially benefit the strained immigration
system to ensure justice is achieved.

Works Cited
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and-immigration-united-states#Refugees
Ingrid V. Eagly, Steven Shafer (2015). A National Study of Access to Counsel in
Immigration Court. Journal of the University of Pennsylvania Law Review
Reno v. Flores, 507 U.S. 292 (1993).. (2018). Law.cornell.edu. Retrieved May 22, 2019, from
https://www.law.cornell.edu/supct/html/91-905.ZC.html
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Metcalf, Mark H. Built to Fail: Deception and Disorder in Americas Immigration Courts.
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Tanenhaus, D.S. (2017). The constitutional rights of children: In re Gault and Juvenile
Justice.Lawrence, KS: University Press of Kansas.
Wynne, Michael J. (2017). Treating Unaccompanied Children like Children: A Call for
the Due Process Right to Counsel for Unaccompanied Minors Placed in Removal Proceedings.
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