The Child's Right to Legal Assistance in Removal Proceedings under International Law

I. INTRODUCTION In countries around the world, undocumented immigrants are a vulnerable population in need of special legal protections. Within these populations, unaccompanied children especially need protection. They are often hidden from the public eye, subject to dangerous or abusive conditions, and fleeing persecution in their home countries. When subject to removal without the assistance of legal representation, it may be practically impossible for unaccompanied alien children to obtain relief. In cases involving alien children, the right to counsel is uniquely necessary and can be specially tailored to meet a child's needs. In alien child removal cases, counsel plays an informational and relational role: establishing a relationship with the children in pursuit of their interests, and furnishing the decision-maker with the information necessary to the judgment. If a potential case for asylum exists, the court may not be able to sufficiently understand the child's situation without a legal representative. A legal representative in the form of a lawyer or a guardian will be familiar with the relevant laws, able to provide the necessary individual attention to the child's case, and able to relay the relevant information to the court and advocate for the child's wishes or interests if necessary. The use of a guardian in conjunction with the appointment of an attorney is ideal. In this Comment, I do not intend to argue for new substantive laws, either international or domestic, concerning the rights of aliens. My argument is that a procedural standard must be followed to give traction to substantive rights that already exist. Without the provision of legal assistance in legal proceedings, the rights granted to children under international treaty law, domestic law, and customary international law are in danger of being nullified. In Section II of this Comment, I discuss trends in international law regarding aliens and children. Though the clearest sources of international law do not explicidy provide the right to free legal assistance for children in removal proceedings, trends in international law suggest that such a right may exist, at least as an emerging norm.1 In Section III, I consider various grounds for assessing the strength of this right under international law, including (1) the unique vulnerabilities of unaccompanied alien children, (2) the combined consideration of various international treaties conferring rights on aliens and children, (3) the international legal prohibition on refoulement, (4) the requirement that aliens and nationals receive equal treatment under the law, (5) a critique of the criminal/noncriminal distinction, (6) due process for aliens, and (7) state interests and other considerations. In Section IV, I discuss the substance of the right to free legal assistance, including the use of attorneys and guardians, and potential remedies for failures to provide proper procedure. Finally, I conclude that the right to free legal assistance for children in removal proceedings is a necessary component of due process and an emerging norm under international law. II. TRENDS IN INTERNATIONAL LAW REGARDING ALIENS AND CHILDREN International law regarding aliens and children has progressed significantly in the last century. It has evolved from a state-based framework of essentially unenforceable obligations to a system of rights focused on individuals. Children are now recognized as a category of persons requiring special protection. Rights regarding aliens have developed through various treaties and norms and have become increasingly detailed and category-specific. Throughout the historical development of these rights, the recognition of new rights has been balanced against countervailing state interests. Notwithstanding their international legal obligations, states have strong interests in excluding and expelling aliens efficiendy and expethendy. Since the Second World War, international law regarding aliens has grown from thin agreements between nations, enforceable only by and against nations, to a system of particularized individual rights. …