By Nino Monea

This is a guest post by Nino Monea. Nino is a third-year student at Harvard Law School and is the 2016-2017 President of Student Government. He is also one of two Presidents of the Harvard Journal on Legislation. 

Many of the most cherished rights in the Constitution and its Amendments act as limitations on state power. For example, the First Amendment restrains the government from censoring newspapers, and the Fifth Amendment prevents a person from being tried twice for the same crime.

The Sixth Amendment, however, is one of the few express rights that forces the government to provide something: it guarantees that criminal defendants shall “have the Assistance of Counsel” for their case.[1] Most famously vindicated in the 1963 case of Gideon v. Wainwright,[2] the right ensures that any person, regardless of income, will have an attorney. Or, at least, that’s the hope.

Donald Trump has long promised to deport mass numbers of immigrants if elected, and repeal President Obama’s Deferred Action for Childhood Arrivals (DACA) program,[3] which delays deportation for undocumented immigrants brought into the country as children. Trump now has the opportunity to make good on his word.

It is thus likely that a large number of children will be subject to deportation proceedings. Such children are among those in direst need of the Sixth Amendment’s protection. However, because deportation is labeled a civil, rather than a criminal, matter, the Sixth Amendment’s guarantee of a lawyer does not apply. Children may be forced to navigate the deportation hearings alone.

We’ve seen this play out before. In the past, undocumented minors, fleeing violence in their home countries, have been denied attorneys for their deportation hearings. This creates a judicial farce where preteens with no lawyer, no parents, and no English skills are asked a series of questions by judges before being sent away.[4] To make matters worse, a host of due process rights are inoperative during deportation hearings, such as bail requirements, the Ex Post Facto Clause, and bans on involuntary confessions.[5] This means that children do not need to receive the well-known “Miranda warning” informing them of their rights. And if a child gets tripped up by questions and gives a clumsy answer, that may be used to foreclose alternative relief.[6]

One judge—who is responsible for coordinating the training of other immigration judges throughout the Department of Justice—has even argued borderline toddlers are competent to understand immigration law. He has claimed “I have trained 3-year-olds and 4-year-olds in immigration law. . . . They get it.”[7]

Elsewhere in the law, it is almost universally understood that children cannot be held to the same strictures as adults. The Supreme Court has in the past recognized that children are “less mature and responsible than adults,”[8] lack the ability to “avoid choices that could be detrimental to them,”[9] and that science “show[s] fundamental differences between juveniles and adult minds.”[10] In many states, children under seven are categorically deemed incapable of legal negligence.[11]

A legislative solution would be the ideal route, but it currently looks unlikely. Representative Zoe Lofgren introduced a bill to provide lawyers to these children, the Fair Day in Court for Kids Act.[12] The act would not only provide attorneys to children, but also require the Department of Homeland Security to turn over relevant documents pertaining to the child so that the government does not have an unfair information advantage.[13] But the legislation is currently languishing in committee with only a 2% chance of passing according to analysis by Govtrack.[14]

A judicial solution is unavailable under the current interpretation of the right to counsel. The Court maintains that a deportation proceeding is “purely civil action to determine eligibility to remain” in the country, and not a “punish[ment]”, as if there was a meaningful distinction.[15] Consequences of deportation, however, can be severe. Many children flee to escape rampant gang violence in their home countries, and being forced to return can mean risk of death.[16] Such a fate is surely worse than the penalties for some, if not most, misdemeanors. It is unclear what sets this apart from a “punish[ment].”

Prior to the Gideon the decision, states were not obligated to provide any legal counsel to indigents defendants at all.[17] But the justices in Gideon wisely held that having a lawyer for criminal cases was “fundamental and essential to a fair trial.”[18] It should be self-evident that this language applies equally to children facing deportation. Don’t take my word for it—ask the Supreme Court. It has opined that “the complexity of immigration procedures, and the enormity of the interests at stake, make legal representation in deportation proceedings especially important.”[19] It has nonetheless declined to give these sentiments legal force. A justice appointed by Donald Trump seems unlikely to change this conclusion.

There are many other areas where the Sixth Amendment is under siege. Due to budget cuts, many state public defender systems are underfunded, and appointed counsel are not specialized in criminal defense, for example.[20] But the deck is stacked particularly heavily against children who have no attorneys at all. Trump may be committed to deporting children without affording them due process protections, but Congress does not to be complicit. It has the power to remedy this grave injustice by passing the Fair Day in Court for Kids Act or similar legislation.

Thousands of children—some of them as young as three or four—still face the specter of a deportation hearing with their safety, and possibly their lives, on the line. But until Congress acts, these children will continue to face it alone.

[1] U.S. Const. amend. VI.

[2] 372 U.S. 335.

[3] Immigration, http://www.donaldjtrump.com/policies/immigration (last visited Nov. 12, 2016).

[4] See, e.g., Karen Houppert,  Without Parents or Lawyers, Thousands of Children Brave Chaos of Immigration Courts Alone, Nation (Aug. 25, 2014) https://www.thenation.com/article/without-parents-or-lawyers-thousands-children-brave-chaos-immigration-courts-alone/.

[5] I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984).

[6] Jerry Markon, Can a 3-year old represent herself in immigration court? This judge thinks so, Wash. Post (Mar. 5, 2016) https://www.washingtonpost.com/world/national-security/can-a-3-year-old-represent-herself-in-immigration-court-this-judge-thinks-so/2016/03/03/5be59a32-db25-11e5-925f-1d10062cc82d_story.html.

[7] Jerry Markon, Can a 3-year old represent herself in immigration court? This judge thinks so, Wash. Post (Mar. 5, 2016) https://www.washingtonpost.com/world/national-security/can-a-3-year-old-represent-herself-in-immigration-court-this-judge-thinks-so/2016/03/03/5be59a32-db25-11e5-925f-1d10062cc82d_story.html.

[8] Eddings v. Oklahoma, 455 U.S. 104, 115–16 (1982).

[9] Bellotti v. Baird, 443 U.S. 622, 635 (1979).

[10] Graham v. Florida, 130 S. C.t 2011, 2026 (2010).

[11] Restatement (Second) of Torts § 283A (1965).

[12] Fair Day in Court for Kids Act of 2016, H.R. 4646, 114^th Cong. (2016)

[13] Id.

[14] H.R. 4646: Fair Day in Court for Kids Act of 2016, Govtrack, https://www.govtrack.us/congress/bills/114/hr4646.

[15] I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984).

[16] Stephen Dinan, Democrats say illegal immigrant children should have constitutional right to lawyers, Wash. Times (Feb. 26, 2016) http://www.washingtontimes.com/news/2016/feb/26/dems-give-illegal-immigrant-children-lawyers/.

^[17] Betts v. Brady, 316 U.S. 455, 465 (1942).

^[18] Gideon v. Wainwright, 372 U.S. 335, 342 (1963).

[19] Ardestani v. I.N.S., 502 U.S. 129, 138 (1991).

[20] Justine Breuch, Assigned Counsel Programs in Their Worst Forms, Brown Pol. Rev. (Oct. 19, 2016) http://www.brownpoliticalreview.org/2016/10/assigned-counsel-programs-worst-forms/.