Academic journal article Texas Law Review

Reevaluating the Path to a Constitutional Right to Appointed Counsel for Unaccompanied Alien Children *

Academic journal article Texas Law Review

Reevaluating the Path to a Constitutional Right to Appointed Counsel for Unaccompanied Alien Children *

Article excerpt

Introduction

The current border crisis has raised pressing questions about the adequacy of America's immigration laws and its handling of immigration cases. One of these issues is to what extent unaccompanied alien children (UACs) should receive aid from the federal government: specifically, whether UACs are entitled to appointed counsel. As of now, UACs are denied appointed counsel because of legal precedent that makes granting UACs free legal aid nearly impossible. However, recent case law has arguably opened a new legal path for giving UACs a constitutional right to appointed counsel.

Some scholars have recently argued that Turner v. Rogers1 effectively diminished the negative presumption created in Lassiter v. Department of Social Services of Durham County, North Carolina2 Lassiter's negative presumption holds that civil litigants not facing the possibility of incarceration are presumed not to require appointed counsel.3 Some scholars suggest that Turner diminished this presumption because of its focus on procedural fairness and favorable dicta found throughout its opinion.4 This Note will critique claims that Turner diminished Lassiter's negative presumption and removed a major stumbling block for UACs attempting to obtain appointed counsel. This paper will also argue that the courts must overturn Lassiter's negative presumption before UACs can have a realistic path to appointed counsel.

Part I gives a general overview of the current border crisis and why United States' legal institutions are failing to provide adequate services to UACs, thus establishing the urgency and importance of this issue. Part II explains the origins of Lassiter's negative presumption and its subsequent effects on civil litigants. Moreover, Part II will discuss Turner and the interpretation that some scholars have given it regarding UACs and their legal battle for appointed counsel. Lastly, Part II will argue that despite Turner's reasoning and favorable dicta, Lassiter must be overturned before UACs can be granted a constitutional right to appointed counsel.

I. The Border Surge and the United States' Legal Institutions' Failure to Provide Adequate Legal Services to UACs

Since 2009, there has been a 246% increase in UACs apprehended at the southwestern border.5 The majority of these children are traveling to the United States from El Salvador, Honduras, and Guatemala (the Northern Triangle).6 Children from the Northern Triangle account for 91% of UACs apprehended at the southwestern border.7 Historically, the majority of UACs have been boys between the ages of fifteen and seventeen.8 However, recently there has been a disturbing increase in younger children and young girls.9

Many institutional changes regarding the care of UACs took place in 2002, which coincided with a similar surge like the one the United States is experiencing today.10 The Office of Refugee Resettlement (ORR) of the Department of Health and Human Services was assigned to oversee the care of all UACs.11 The ORR created the Department of Unaccompanied Children's Services (DUCS) to provide for the care and placement of UACs.12 DUCS is responsible for providing a variety of services for UACs. DUCS's primary duties are to ensure the timely appointment of legal representation for UACs in federal custody for immigration reasons and to compile information about the availability of potential guardians.13

These changes have proven to be effective. A study by the Women's Commission asserted that the Department of Health and Human Services "is the federal entity best suited to maintain custody of children in immigration proceedings."14 The study concluded that UACs had benefited significantly from the Department of Health and Human Services and the ORR's policy directives.15

Despite these advances, however, many issues still exist today. The most pressing issue is arguably the need for adequate legal representation for UACs.16 Currently, UACs receive legal aid through three institutions: (1) nonprofit organizations, (2) pro bono projects, and (3) law school clinics. …

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