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Debate continues over young immigrants' right to counsel

Should immigrants facing deportation have a right to legal counsel? Should it make a difference if the immigrants are children under 18?

Should immigrants facing deportation have a right to legal counsel? Should it make a difference if the immigrants are children under 18?

Advocates of strict controls on immigration say guaranteeing lawyers for people in removal proceedings is too costly and that a modicum of harshness and urgency helps prevent prolonged adjudications.

Immigrant advocates, including in Philadelphia, say universal representation could lower costs by improving judicial efficiency, shrinking backlogs, and protecting the civil rights of immigrants who have legitimate claims.

A report last week by the Transactional Records Access Clearinghouse, a Syracuse University group known for in-depth court research, added fresh data to the debate.

Of 63,721 pending cases of juveniles in the nation's immigration courts, just 32 percent are represented by lawyers, TRAC found. The remainder "have not as yet been able to hire a lawyer" or obtain free services.

Another key finding, based on 20,000 juvenile cases decided since 2011, underscores advocates' concerns about fairness and justice.

In 73 percent of the cases in which the child was represented, the court allowed the child to remain in the United States.

Where the child appeared alone, without representation, only 15 percent were allowed to stay.

"Whether or not an unaccompanied juvenile had an attorney," TRAC noted, "was the single most important factor" influencing the case's outcome.

"It's a huge problem," said Brennan Gian-Grasso, vice secretary of the Philadelphia chapter of the American Immigration Lawyers Association. "Especially with the recent surge of immigrants. They tend to be very difficult cases to prepare, asylums in particular. The person who is [representing himself] has much less chance of victory."

In Philadelphia, the rate of representation in juvenile cases is higher than the national average but still unsettling to advocates for undocumented youth. Of the 952 cases of unaccompanied children pending locally on the snapshot date of Oct. 31, more than half - 53 percent - went to court without an attorney.

The summer's surge by tens of thousands of unaccompanied children across the southern border illegally spotlighted the issue, along with "Young, Scared, Alone and in Court," an American Civil Liberties Union media campaign and accompanying class-action lawsuit that challenges the federal government's failure to provide lawyers for deportation defense.

"No child should face an immigration judge alone," reads the ACLU Web page for an online petition signed by tens of thousands of supporters. "No one should have to give up their safe refuge just because they can't afford an attorney."

The suit, J.E.F.M. v. Holder, filed in July in Seattle, contends that failure to provide lawyers to children in cases in which they face removal violates their Fifth Amendment right to due process and the half-century-old Immigration and Nationality Act, which requires a "full and fair hearing" before an immigration judge.

In addition to the lawsuit, the ACLU's campaign calls on President Obama to go beyond his recent use of executive power to require free legal counsel for all children in deportation hearings.

Judith Bernstein-Baker, executive director of HIAS Pennsylvania, an immigrant support group that provides free and low-cost services to eligible immigrants, said a right to counsel "would definitely be a money-saver" because judges take more time with cases that do not have a defense lawyer.

"Having an attorney in the end would be more cost effective," she said.

A strong advocate for volunteerism, Bernstein-Baker said volunteer attorneys are not sufficient to meet the need.

"It is part of the solution," she said, "but the volume is too great to be handled by pro bono attorneys. They have no capacity to do the number of cases where representation is required."