Across cases nationwide, unaccompanied immigrant children walk into courtrooms alone, with no attorney by their side. Without guaranteed access to legal representation in immigration proceedings, they are often left to confront the full force of the American legal system on their own, along with the subsequent life-altering consequences. In these moments, the idea of “due process” rings hollow. How can a child, often unfamiliar with the language and entirely untrained in the law, possibly receive a fair trial?
This reality exposes the limitations of Gideon v. Wainwright, the landmark Supreme Court case that guaranteed the right to counsel for individuals unable to afford an attorney. In 1963, the Court ruled that states must provide attorneys in criminal trials under the Sixth and Fourteenth Amendments, recognizing that justice demanded fair representation. Yet the decision fell short on its promise of equal access to justice, leaving an unmistakable gap. Civil litigants, no matter how vulnerable, were left without the same protections.
Criminal proceedings, in which the government prosecutes an individual for a crime, are not the only area of the law with incredibly high stakes. Civil trials are just as urgent and can have equally damaging repercussions on a person’s life. While criminal law aims to punish the offender through prison sentences or fines, civil law addresses disputes between private parties by seeking compensation for harm or to resolve a disagreement. Civil cases can determine whether families are evicted, whether children stay with their parents, whether victims receive compensation after an accident, and whether employees can fight discrimination or exploitation.
California Assemblyman Mike Feuer, a sponsor of the Sargent Shriver Civil Counsel Act seeking to expand legal protections into the civil realm, points out the unfortunate irony in existing gaps within representation: “[Y]ou can be arrested for stealing a small amount of food—a box of Twinkies from a convenience store—and you’re entitled to counsel. But if your house is on the line, or your child is on the line, or you’re being abused in a domestic relationship, you don’t have the same right to counsel.”
Right now, nonprofits and legal aid programs largely carry the burden of filling this gap in representation, but they lack sufficient resources to address this issue on their own. In fact, every year, nearly a million people are turned away from accessing these services simply because there are not enough attorneys to take on their cases. This figure does not even encompass the full scope of the issue, since most low-income individuals with civil legal problems never apply to receive aid in the first place. As a result, many litigants represent themselves in court, but often fail to gain meaningful access to justice in a system designed for trained attorneys.
Immigration proceedings, which also fall under civil law, illustrate these consequences quite clearly. Since much of the field is determined by the Immigration and Nationality Act, the law dictates that “[noncitizens] shall have the privilege of being represented, at no expense to the Government, by counsel of the [noncitizen’s] choosing who is authorized to practice in such proceedings.” Therefore, while people undergoing immigration proceedings have the “privilege” of hiring a lawyer, these expenses are out of reach for many, especially those in detention.
This evidently disadvantages noncitizens in a manner that obstructs justice. Unfortunately, a 2016 report cited that only 37 percent of immigrants and 14 percent of detained immigrants acquired representation in immigration court. Of those facing removal, only 5 percent successfully won their cases without an attorney between 2007 and 2012. On the other hand, detained immigrants were more than ten times as likely to win their cases when they did secure representation.
Earlier this year, the Trump administration exacerbated existing disparities by announcing a partial termination of the Unaccompanied Children Program, which provided legal services to unaccompanied migrant children. Originally mandated under the Trafficking Victims Protection Reauthorization Act (TVPRA), thousands of children, some under a year old, have been left with no legal representation as a result of this decision. While a federal district court has ordered the Trump administration to reverse its termination, funding is yet to be restored to the program and litigation is ongoing.
The stakes of these trials also cannot be overstated. Deportation and detention tear families apart, derail lives, and carry permanent consequences that threaten the human dignity and well-being of millions of immigrants. Especially under an administration that has promised to carry out the largest deportation campaign in American history, legal protections for immigrant communities are more dire than ever.
Representation of noncitizens not only provides them with the fair trial they are entitled to, but also guards against abuses of power by the federal government. Legal counsel serves as a crucial check on litigation conducted by the government, especially during removal proceedings, in order to ensure that they are applying the law correctly. Additionally, legal representation typically holds agencies like the U.S. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) accountable for their actions. Documented cases of abuse and mistreatment at the border in detention facilities highlight the need for this external oversight of government agencies.
The U.S. Constitution guarantees due process rights to all “persons” within the United States, not just citizens. Legal counsel during immigration proceedings protects those fundamental rights by promoting fairer legal proceedings, particularly when a person’s status in the country is at stake. Expecting someone to execute an effective defense in these circumstances with no assistance, often in a language they do not even speak, cannot be considered due process. Recently, some cases have not even been afforded the pretense of fairness, as people are being detained despite having no criminal record or denied hearings altogether.
These alarming legal inequalities make it clear that restricting the right to counsel to criminal applications is detrimental to equal justice. The current legal assistance provided to people in criminal cases insufficiently accounts for the many other instances where legal aid is necessary, and guaranteeing the right to counsel must be extended to civil cases to ensure that everyone has access to justice. This idea of universal representation is essential. Without it, we reinforce inequality and deepen the structural discrimination that already weighs heavily on low-income individuals and minorities.
Some states have begun to take action in an attempt to remedy this issue. Cities like New York, Los Angeles, San Francisco, Seattle, Austin, and Washington D.C. have begun funding lawyers for immigrants facing removal proceedings. In California, the Sargent Shriver Civil Counsel Act was signed into law, creating the first state program to provide government-funded lawyers for qualifying litigants in civil cases. In effort to specifically address lack of representation during removal proceedings, advocates in New York have also pushed for the Access to Representation Act, proposed legislation which aims to establish guaranteed legal counsel for immigrants facing deportation.
Local and state efforts are unfortunately not enough. We need a nationwide guarantee of the right to counsel in civil cases, just as there is in criminal ones. Until that happens, children, families, and communities will continue to walk into courtrooms unprotected, expected to fight for their lives and futures alone.
Featured Image: The Imprint
