Forgotten Children of Immigration and Family Law: How The Absence of Legal Aid Affects Children in the United States
| Date | 01 October 2015 |
| Author | Alexis Sarnicola,Mary O'Neill,Parisa Bagheri |
| Published date | 01 October 2015 |
| DOI | http://doi.org/10.1111/fcre.12180 |
FORGOTTEN CHILDREN OF IMMIGRATION AND FAMILY LAW:
HOW THE ABSENCE OF LEGAL AID AFFECTS CHILDREN
IN THE UNITED STATES
Mary O’Neill, Parisa Bagheri, and Alexis Sarnicola
The absence of government-appointed legal counsel in immigration proceedings adversely affects large numbers of children in
the United States. Children born in the United States to parents without citizenship status (U.S.-born children of noncitizen
parents or UCNP) are harmed by a parent’s detention and removal. Unaccompanied alien children (UAC) who have entered
the country without legal status are adversely affected by their own detention and removal. The possibility of obtaining relief
from removal is drastically diminished by the lack of legal representation. Currently UAC and immigrant parents are not enti-
tled to court-appointed attorneys. Any meaningful change in immigration law, such as a federal statutory amendment to pro-
vide UAC and immigrant parents with government-appointed counsel is unlikely due to the present political dissension in
Congress regarding this issue. Because UAC and immigrant parents are not entitled to government-funded legal representation,
a pro bono legal service system has developed, but is unable to meet the present need adequately. For immigrant parents, this
Note proposes the adoption of a statute to allow the appointment of court liaisons in family court proceedings. The court liai-
son is a nonattorney who is familiar with the processes of the family court and ensures that immigrant parents are fully
informed regarding all pertinent family court proceedings. For UAC, this Note proposes an amendment to the William Wilber-
force Trafficking Victims Protection Reauthorization Act to mandate the appointment of a child advocate to all UAC. The child
advocate is not a lawyer, but works with the UAC’s attorney to provide the child with legal representation and advocacy.
Key Points for the Family Court Community:
UCNP confront the loss of parents to detention and removal. Children are condemned to limbo, torn between absent
biological parents and placement in foster care.
The recent surge in the number of UAC who enter the United States by crossing the border from Mexico has been
described as a humanitarian crisis. These children often remain alone without legal protection, vulnerable to detention
and removal.
Ideally, UAC and the immigrant parents would be provided with government-funded legal representation in immi-
gration proceedings . In the absence of the fed eral statutory refor m necessary to make that a reality, state stat utory
reform to allow for the provision of court liaison programs for immigrant parents and federal statutory reform to
allow the appointment of child advocates for UAC can begin to offer children and families needed legal support and
advocacy.
Keywords: Immigration; Legal Representation; Unaccompanied Alien Children; and U.S. Citizen Children.
I. INTRODUCTION
Children and families need legal advocates in order to ensure that they receive fair and just treat-
ment during their involvement with the United States immigration and family court systems.
1
Some
children confront the complexities of the immigration system alone because they have travelled with-
out their parents to the United States.
2
Some children, despite their own status as U.S. citizens, have
been separated from their families due to their parent’s citizenship status.
3
As a result, both groups of
children are adversely affected psychologically and physically.
4
A child born in the United States who is subject to the jurisdiction of the United States is a United
States citizen at birth.
5
Children born in the United States to parents without legal status (United
States-born children of noncitizen parents or “UCNP”) may be separated from family due to a
Correspondence: Kerin2@optonline.net; alexis.sarnicola@gmail.com; parisabagheri88@gmail.com
FAMILY COURT REVIEW, Vol. 53 No. 4, October 2015 676–697
V
C2015 Association of Family and Conciliation Courts
parent’s apprehension, detention, and removal. As a result, UCNPs confront the challenges of the
family court system, the termination of parental rights, or even removal of their parents.
Children who have fled their countries of origin alone to seek sanctuary in the United States are
considered unaccompanied alien children (“UAC”).
6
The Homeland Security Act of 2002 defines an
unaccompanied alien child as a child who is under 18 years of age; who has no legal immigration sta-
tus in the United States; and who does not have a parent or legal guardian in the country or who does
not have a parent or legal guardian in the country available to provide care and custody.
7
UAC appre-
hended after their entry to the United States without legal status confront immigration proceedings
and the possibility of removal.
8
Both groups of children are affected, either directly or indirectly, by the lack of government
appointed legal counsel, for themselves or for their parents, in immigration proceedings. Some
children who enter the country alone without legal status are impacted upon directly as they face
immigration proceedings without the support of a government funded attorney and as a result need
the services of a child advocate.
9
Other children born in the United States are affected indirectly as
they confront separation from parents who have not had the benefit of government funded legal
counsel in removal proceedings and later require the services of a court liaison in family court
proceedings.
10
Because immigration proceedings are civil matters,
11
UAC and immigrant parents do not have an
entitlement to government appointed counsel.
12
Although government funded legal counsel would
most effectively ensure that UAC and immigrant parents receive fair and just treatment in immigra-
tion proceedings,
13
the associated costs and political turmoil
14
surrounding the issue make the neces-
sary federal statutory enactment unlikely. Without government funded representation, and lacking
the resources to obtain private counsel, UAC and immigrant parents must either acquire the services
of pro bono attorneys
15
or confront the immigration process alone. Since the need for representation
outweighs the availability of pro bono counsel,
16
additional support through the development of
court liaison and child advocate programs
17
is necessary.
The development of court liaison programs can prevent the separation of UCNP from their biolog-
ical parents regardless of their parent’s citizenship status. Court liaisons are knowledgeable regarding
family court processes and ensure that immigrant parents understand and are familiar with all family
court proceedings that involve the child.
The appointment of a child advocate
18
to each unaccompanied alien child can increase the avail-
ability of support and advocacy services for unaccompanied minors.
19
Child advocates can be volun-
teers who are trained and supervised by attorneys with experience in immigration law, human rights
and child welfare.
20
Advocates can receive instruction in immigration procedures.
21
The child advo-
cate is not a lawyer but can work cooperatively with the child’s attorney and can provide the child
with support as the minor attempts to navigate the immigration system.
22
The child advocate can
campaign for the child’s appropriate placement within the Office of Refugee Resettlement (ORR)
spectrum of placements and can assist the child in attempting to locate a parent, relative or
sponsor.
23
Part I of this Note provides an overview of the children affected directly and indirectly by the
absence of government appointed legal counsel for youth and adults in immigration proceedings.
Part II illustrates the difficult issues that the possibility of removal in immigration proceedings raises
for UAC and for immigrant parents. Part II also examines the consequences of removal for immi-
grant parents in family court proceedings. Part III discusses the types of programs that have been
developed in response to the absence of government funded legal representation for aliens in immi-
gration proceedings. Part IV proposes, for immigrant parents, the provision of court liaisons through
the adoption of a proposed statute. This Note further proposes for UAC, an amendment of the Wil-
liam Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”) to require
the appointment of child advocates to all UAC. Part V discusses the obstacles to the provision of
advocacy and liaison services in immigration and family court proceedings, which include an
increased burden on the courts, the cost of implementation, and the national perception of immigra-
tion issues. Part VI concludes with a description of President Obama’s recent plans to address
O’Neill, Bagheri and Sarnicola/FORGOTTEN CHILDREN 677
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