The Right to be Heard: Voicing the Due Process Right to Counsel for Unaccompanied Alien Children

Every year, the Department of Homeland Security detains thousands of unaccompanied alien children who have crossed the border into the United States. The framework set out in Lassiter v. Department of Social Services and Gideon v. Wainwright for all civil litigants creates a stumbling block in recognizing a constitutional right to counsel in the immigration context, but this Article argues that unaccompanied alien children do, in fact, have a constitutional right to counsel. Unaccompanied alien children are in unique circumstances and their right to counsel is three-fold. First, immigration law and procedure are complex and an unaccompanied child can effectively pursue claims for relief before the immigration courts only with the assistance of counsel. Second, pending the outcome of immigration proceedings, a child may have the right to reunification with family members in the United States. Third, the conditions in detention facilities are often horrendous and appointed counsel would ensure that a child is not subjected to inhumane treatment while his or her case is pending. This three-fold necessity, in addition to the unique circumstances of unaccompanied alien children, gives rise to a constitutional right to counsel