This post is written by Associate Editor Anna Korneeva. Opinions and views expressed herein are those of the writer alone.
Immigrants in removal proceedings, regardless of age, are not entitled to appointed legal counsel. This leaves unaccompanied child immigrants to represent themselves in a foreign country, language, and an extremely complex legal system that many courts have suggested “only an attorney can navigate.”
First, these children must identify their options for legal relief. Then, they must prepare and timely present evidence, witnesses, and submissions, as well as legal arguments. And, of course, the proceeding is adversarial—a child’s case is refuted by a trained government lawyer who acts as a prosecutor, advocating for the child’s removal back to their home country, the place where the child is likely to be injured or even killed.
Is it good policy to risk children’s safety by requiring them to act as their own lawyer? I don’t think so. But good morals and justice are not the only reasons children should have an opportunity to adequately present their case. There are legal concerns as well.
In Mathews v. Diaz, the Supreme Court confirmed the Constitution’s recognition of the rights of removable aliens, even if their presence is “unlawful, involuntary, or transitory.” So what constitutional rights may provide unaccompanied child immigrants with appointed counsel?
Gideon v. Wainwright declared that under the Sixth Amendment of the United States Constitution “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” But the Sixth Amendment right to appointed counsel applies only to criminal proceedings and does not extend to immigration proceedings because they “are civil in nature.”
Relatively recent case law establishing the categorical right to appointed counsel for mentally disabled immigrants in removal proceedings represents the singular foothold of civil Gideon in the immigration realm. In Franco-Gonzalez, the Central District of California found a right to appointed counsel for disabled immigrants, specifically holding that §504 of the Rehabilitation Act required the appointment of qualified representatives for mentally-incapacitated persons. Yet by explicitly predicating its reasoning on the plaintiffs’ disability claims, the court did not address the plaintiffs’ constitutional claims (but even then, the idea that appointed counsel is required for individuals with limited-cognitive ability can easily extrapolate to children whose cognitive skills are not fully developed).
Still and all, courts have specifically noted the Fifth-Amendment implications in immigration court: “[A]n alien has a right to counsel if the absence of counsel would violate due process under the Fifth Amendment.”
The Ninth Circuit is the only jurisdiction that has examined the Fifth-Amendment right to appointed counsel of unaccompanied children as a class. The court in J.E.F.M. looked to the test established in Matthews v. Eldridge, which focuses on three key factors: (1) “the nature of the plaintiff’s interest”; (2) “the risk of erroneous deprivation”; and (3) “the fiscal or administrative burdens on the government associated with additional or substitute safeguards.” Unfortunately, the district court in J.E.F.M. did not engage in the full Matthews analysis since it was only considering a motion to dismiss for failure to state a claim. However, the court did find that the plaintiffs had a plausible basis for relief under the due-process claim.
In briefly analyzing the first factor, the court noted that deportation is a “drastic measure and at times the equivalent of banishment or exile.” Further, the court rejected the defendants’ argument that it should focus only on the administrative act of deportation itself, and ignore the “potential effect of removal, which might be the same or worse than incarceration for some minor aliens.”
Then, in briefly considering the second factor, the court again found for the plaintiffs. Specifically, the court cast aside the defendants’ allegation that the risk of erroneous deprivation was minimal because plaintiffs could always appeal their cases, noting the circularity of such an argument. The court reasoned that, if lack of counsel caused erroneous deprivation in the original proceeding, appeal is a hollow safeguard because appellate “review is generally limited to the administrative record” and the “absence of counsel in the underlying proceeding is likely to affect the shape and scope of such record.” It also noted that one plaintiff had already been improperly ordered to be removed, which was sufficient to indicate a high risk of error.
The court was unable to fully address the third Matthews factor because of the limited evidentiary record. It did, however, reject the defendants’ broad concerns of “wheels . . . grinding to a halt,” and fears that “even more youngsters [would] journey illegally to the United States,” indicating that such concerns were unsupported. 
In total, the Ninth Circuit’s Matthews analysis demonstrates that the Fifth Amendment due process comports with, if not requires, the appointment of counsel for unaccompanied-child migrants.
In the alternative, it has been argued, “the benefits of appointed counsel for unaccompanied children ‘may be outweighed by the cost.”’
While the appointment of counsel in removal proceedings may initially result in additional costs, it will eventually yield concrete savings, as the process will be more orderly and efficient. For example, counsel representing a child can review potential claims, provide legal advice, and pursue valid claims for relief from removal. Counsel familiar with immigration court proceedings has the ability to create a more efficient environment than a child who appears pro se, unskilled in the procedural intricacies of presenting evidence and making arguments. Additionally, counsel is more adept than children at locating family members or other entities willing to serve as guardians, thereby reducing the government’s burden of detaining unaccompanied minors throughout their removal proceedings.
Accordingly, appointment of counsel will increase the efficiency of proceedings and the immigration system as a whole, expedite family reunifications, and reduce unwarranted detentions.
Lastly, as former Attorney General Eric Holder put it, “How we treat those in need, particularly young people who must appear in immigration proceedings—many of whom are fleeing violence, persecution, abuse or trafficking—goes to the core of who we are as a nation.”
 8 U.S.C.A. § 1362 (West).
 6 U.S.C.A. § 279 (West). See, e.g., Lok v. Immigration & Nat. Serv., 548 F.2d 37, 38 (2d Cir. 1977) (noting that the Immigration and Nationality Act bears a “striking resemblance … [to] King Minos’s labyrinth in ancient Crete”); see also Castro-O’Ryan v. U.S. Dept. of Immigration & Nat., 847 F.2d 1307, 1312 (9th Cir. 1988) (“A lawyer is often the only person who could thread the labyrinth [of immigration laws].”).
 See McKayla M. Smith, Scared, but No Longer Alone: Using Louisiana to Build A Nationwide System of Representation for Unaccompanied Children, 63 Loy. L. Rev. 111, 114 (2017).
 Matthews v. Diaz, 426 U.S. 67, 77 (1976).
 372 U.S. 335, 344 (1963).
 United States v. Campos-Asencio, 822 F.2d 506, 509 (5th Cir. 1987).
 Franco-Gonzalez v. Holder, 2013 WL 3674492, at *20 (C.D. Cal. Apr. 23, 2013).
 Id. at *3.
 Id. at *9.
 United States v. Campos-Asencio, 822 F.2d 506, 509 (5th Cir. 1987).
 J.E.F.M. v. Holder, 107 F. Supp. 3d 1119 (W.D. Wash. 2015).
 Id. (citing Matthews v. Eldridge, 424 U.S. 319, 335 (1976)).
 Id. at 1137, 1139-43.
 J.E.F.M., 107 F. Supp. 3d at 1140.
 Id. at 1140-42.
 See id. at 1140-41 (“Defendants [argue that] … the availability of appellate and judicial review is a sufficient substitute for the assistance of counsel in removal proceedings …. [This] contention runs counter to common sense. Under this theory, counsel would be unnecessary even in a criminal proceeding because the accused, if convicted, could always appeal.”).
 J.E.F.M., 107 F. Supp. 3d at 1141.
 Id. at 1141-42.
 Id. at 1142-43.
 Id. at 1142-43 (citations omitted) (“Rather than attempting to quantify the financial and administrative burdens associated with plaintiffs’ requested relief or possible alternatives, defendants speak broadly in ‘slippery slope’ terms …. They also seem to fear that the Court will inadvertently create a loophole through which parents, guardians, or other adult aliens might receive the services of an appointed attorney.”).
 Linda Kelly Hill, The Right to be Heard: Voicing the Due Process Right to Counsel for Unaccompanied Alien Children, 31 B.C. THIRD WORLD L.J. 41, 63-64 (2011); Matthews v. Eldridge, 424 U.S. 319, 348 (1976).
 Hill, supra note 23, at 67-68.
 Id. at 66-67.
 Justice Department And CNCS Announce New Partnership To Enhance Immigration Courts And Provide Critical Legal Assistance To Unaccompanied Minors, 2014 WL 2536422 (D.O.J).