Right-wing media outlets are complaining about the federal government's announcement that it will provide grant money to legal services organizations willing to represent undocumented immigrant children in deportation proceedings.

Earlier this summer, federal officials reported that a record number of unaccompanied minors were being apprehended while crossing the border from Mexico into the United States. Despite the fact that many of those children made the dangerous journey to escape horrific violence in their home countries, right-wing media still blamed President Obama for the increase in refugees, suggested that the children carried rare diseases, and claimed that they were "fronts for drug dealers" and terrorists. Although the number of unaccompanied minors coming into the United States has dropped over the last few months, children now in custody are entering deportation proceedings, and most of them will face the court with no lawyer -- a potential violation of due process that right-wing media don't seem to care much about.

Federal law allows immigrants “the privilege of being represented, at no expense to the government, by counsel of the alien's choosing.” This privilege, however, is no guarantee and often hollow as many of these minors cannot afford a private attorney. As a result, thousands of children -- who have no money -- are forced to represent themselves in complex legal proceedings because there aren't enough lawyers available to take their case pro bono, without a fee. As The New York Times reported earlier this year, minors representing themselves in court “can be comically tragic, with preschoolers propped in leather-cushioned chairs facing off against federal lawyers.” Although the grant money will be a step toward addressing this glaring civil rights problem, advocates agree that “it would only touch a fraction of all the unaccompanied minors who appear in court in the coming months.”

To try to provide these preschoolers with basic due process, the Department of Justice announced plans to distribute $1.8 million in grants to legal aid organizations that represent unaccompanied minors in immigration court. The DOJ's grants will be awarded through AmeriCorps and “will enable legal aid organizations to enroll approximately 100 lawyers and paralegals to represent children in immigration proceedings.” The Department of Health and Human Services also announced that it plans to give out $9 million over the next two years to help fund immigration services for children who face deportation.

But the right-wing media weren't wild about extending civil rights to these unaccompanied minors.

National Review Online complained that the grants hadn't received enough scrutiny in the media because they were “an unprecedented effort to shield illegal immigrants from deportation” and went on to say the grants are “legally dubious” and may be an “illegitimate use of taxpayer dollars.” On the October 1 edition of Fox & Friends, host Brian Kilmeade also criticized the federal grants in his “News by the Numbers” segment:

Both NRO and Fox ignore the constitutional issues that arise when children are forced to enter deportation proceedings without legal representation. In fact, neither outlet mentioned the concept of due process at all. But as the Northwest Immigrant Rights Project explained in a lawsuit filed on behalf of eight unrepresented children, forcing children to represent themselves in deportation proceedings is “fundamentally unfair” because immigration laws are “a legal regime that, as the courts have recognized, rivals the Internal Revenue Code in its complexity.” As the complaint notes, “no lawyer will stand with the child[ren]” who enter these proceedings, but “the Government, in contrast, is represented in every case”:

Immigrants, including immigrant children, are also entitled to Due Process when facing deportation. Both the Constitution and the immigration laws guarantee all children the right to a full and fair removal hearing, including the opportunity to defend against deportation and seek any forms of relief that would enable them to remain in the United States. And just as in juvenile delinquency proceedings, children cannot receive that fair hearing without legal representation. As the Supreme Court stated in discussing proceedings of similarly “tremendous consequences,” for children in immigration proceedings "[t]he right to representation by counsel is not a formality. It is not a grudging gesture to a ritualistic requirement. It is of the essence of justice."

Yet every day in courts throughout the country, children represent themselves in deportation cases that are often more complex and more serious than most juvenile delinquency cases. The resulting adjudications are fundamentally unfair. Children are forced to admit or deny allegations against them compile evidence in support of their claims to remain in the United States, and articulate legal arguments on their own behalf, when in reality they “are unlikely to understand the complex procedures they face and the options and remedies that may be available to them under the law.”

To fulfill its statutory and constitutional obligations, the Government must ensure that no child faces the life-altering prospect of deportation without legal representation. [citations removed]

The judge in that case seemed to agree, at least in part, with this argument. Though the judge denied a preliminary injunction that would have delayed deportation proceedings for children without lawyers, he nonetheless wrote that the case “poses an important constitutional question” and that “the Court is sympathetic to plaintiffs' plea for legal assistance with the immigration maze in which they now find themselves.”

But right-wing media seem less concerned with the plight of these children than they are about a series of modest grant proposals that will help non-governmental entities hire more attorneys to deal with this significant constitutional crisis. Even without the constitutional concerns, experts note the claims that the grants are not allowed under federal law are suspect as well. As detailed by the legal immigrant advocacy organization Kids in Need of Defense (KIND) as well as the Center for Gender and Refugee Studies at the University of California Hastings College of the Law, Congress has recognized on a bipartisan basis that unaccompanied minors deserve civil rights:

The TVPRA [William Wilberforce Trafficking Victims Protection Reauthorization Act] of 2008 has increased representation of unaccompanied children by making the Secretary of Health and Human Services responsible to “ensure, to the greatest extent practicable” that all unaccompanied children have legal representation, and encouraging the Department of Health and Human Services (HHS) to “make every effort to utilize the services of pro bono counsel” to represent them free of charge. Together, these provisions have facilitated pro bono representation and resulted in a public-private partnership model that matches pro bono attorneys in the private sector with unaccompanied children who need representation, leveraging modest resources into millions of dollars' worth of pro bono representation for these children.

Nevertheless, a large gap remains in resources for legal counsel, so that most children appearing before immigration judges are still unrepresented. The Senate comprehensive immigration reform bill, S. 744, and the House of Representatives' companion bill, H.R. 15, seek to address this critical deficiency by including provisions mandating appointment of counsel for unaccompanied children. Until Congress enacts these or similar provisions, the representation gap will continue to grow as the number of unaccompanied children continues to climb.

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The FY 2014 Omnibus appropriations bill passed on January 13, 2014 (“Consolidated Appropriations Act, 2014”) includes language in support of efforts to improve unaccompanied children's access to legal services and child advocates. The language is a big step forward towards ensuring the protection of unaccompanied children. But, with the number of these children coming to the United States continuing to rise to record levels, it is important that these efforts are scaled to meet the growing need. 

Photo via Flickr/Brooke Binkowski under a Creative Commons License.