Bill introduced to guarantee access to counsel for children during immigration removal proceedings

WASHINGTON (NEWS10) – On Tuesday, U.S. Senator Kirsten Gillibrand introduced the Funding Attorneys for Indigent Removal (FAIR) Proceedings Act. This bill would guarantee access to government-funded legal counsel during removal proceedings for children, individuals with disabilities, victims of abuse, torture, and violence, and those living at or below 200% of the federal poverty line.

Unlike American constitutional guarantees in criminal cases, those going through immigration removal proceedings do not have a guaranteed right to counsel. According to an American Immigration Council study, “only 37 percent of all immigrants and 14 percent of detained immigrants go to court with lawyers on their side.” Noncitizens, including children, must often argue their case without legal representation.  

“Fairness and due process shouldn’t be available just to those who can afford the resources needed to navigate a vast and complex immigration system,” said Senator Gillibrand. “Guaranteed access to counsel will get us closer to reimagining and rebuilding an immigration court system that recognizes the dignity of children and vulnerable individuals, who deserve a fair shot at defending their cases. I’m also calling on the attorney general to consider necessary updates to the immigration courts system because fixing the crisis at the border requires measured, thoughtful, and long-term vision.”

In a Syracuse University analysis of immigration court data, 73% of unaccompanied children that had legal representation were allowed to remain in the United States, versus only 15% of unrepresented children.

Following the introduction of the FAIR Proceedings Act, Gillibrand announced she and her Senate colleagues are sending a letter to U.S. Attorney General Merrick Garland. In the letter, the Senators urge the Department of Justice (DOJ) to review and address the needs of the Immigration Court system to ensure that proceedings are fair, the most vulnerable are protected, and that the independence and authority of immigration judges is fully restored. Gillibrand also requested that DOJ consider COVID-19 safety measures to keep judges, attorneys, and defendants safe during court proceedings. 

The FAIR Proceedings Act would:

• Require government-guaranteed legal counsel during removal proceedings for children, individuals with disabilities, victims of abuse, torture, and violence; and those at or below 200% of the federal poverty level.
• Require legal orientation programs for all detained noncitizens at immigration facilities.
• Ensure fairness and an equal playing field between respondents and government lawyers by guaranteeing the right to review documents that DHS plans to use against in removal proceedings.
• Contribute to streamlining court processes and reducing the immigration court backlog. When a lawyer is present, clients are informed, prepared, and better understand the proceedings. The senators say increased access to counsel will improve the entire court system’s functionality and efficiency through a reduction in delays and continuances.

U.S. Senators Markey (D-MA), Blumenthal (D-CT), Booker (D-NJ), Warren (D-MA), Padilla (D-CA), Kaine (D-VA), Merkley (D-OR), and Klobuchar (D-WI) co-sponsored the bill.