An International Human Right to
Free Legal Counsel for UASC in
U.S. Immigration Proceedings
1
Sanjula Weerasinghe and Andrew Schoenholtz,
Georgetown University
Sarah Bronstein, CLINIC
December 14, 2010
U.S. Context:
Demographics
2
In FY 2007 ORR placed 8,212 unaccompanied alien children in
its various facilities. Most were from El Salvador, Guatemala
or Honduras. 76% were male; 15 % were 13 or younger.
In FY 2009, over 6,000 unaccompanied alien children were
apprehended by DHS and placed in ORR/DUCS care.
U.S. Context:
Unaccompanied Children in Immigration Proceedings
3

Government not required to provide funding for direct
representation

Efforts to secure pro bono representation

Nonetheless, significant lack of representation for
unaccompanied and separated children in U.S.
immigration proceedings – i.e. only 19% represented
between April 1, 2006 and March 31, 2008
U.S. Context:
Importance of Representation in Immigration Proceedings
4

Children not competent to represent themselves in
any legal proceedings, let alone complex ones such as
removal and asylum proceedings

Research shows much greater likelihood (3-6 times)
of gaining asylum with legal representation
Purpose of Research/Webinar
5
DEVELOP NEW ARGUMENTS TO SECURE
COUNSEL FOR UNACCOMPANIED AND
SEPARATED CHILDREN
&
CHANGE THE STATUS QUO
Purpose of Research/Webinar
6
PART OF THE CAMPAIGN TO
BRING HUMAN RIGHTS BACK
HOME
7
DEFINITIONS
UNDER
INTERNATIONAL
LAW
Child: Every human being below the age of 18
years, unless under the law applicable to the
child, majority is attained earlier
Separated children: Separated from both
parents and other relatives and not cared
for by an adult who, by law or custom, is
responsible for doing so
Unaccompanied children: Separated from
both parents, or previous legal or customary
primary caregiver, but not necessarily from
other relatives
Unaccompanied and separated children
(UASC): Above 2 definitions
8
OVERVIEW
OF
PRESENTATION
International human rights law and
commentary on the right to counsel for
UASC


Main sources of law and commentary
Relevant principles, rules and commentary
Five potential areas for advocacy

Best interests of the child requires provision of free
legal counsel to UASC

Children temporarily or permanently deprived of their
family environment have a right to free legal counsel

Fairness/access to justice for UASC children
necessarily requires free legal counsel

Detained UASC have right to free legal counsel

UASC seeking asylum have a right to free legal
counsel
Main Sources of International Law and Guidance
9
Treaty
UNCHR Guidelines
Treaty Body
Commentary
UNHCR Executive
Committee (ExCom)
Conclusion
Convention on the Rights of the Child (CRC):
A Brief introduction
10

Paramount international treaty on rights of children

Unparalleled ratification record

The United States signed the CRC but is not yet a party

Nonetheless, under international law, the United States
is obliged to act in a manner consistent with CRC’s
object and purpose
CRC:
A Brief Introduction
11

Until ratification, advocates can use the CRC for its persuasive value
before policy makers and judges

Upon ratification, advocates can argue provisions of the CRC are
binding in the United States (Note: implementation generally
needed to enforce non-self-executing treaties)

Advocates can also argue that provisions of CRC are binding if such
provisions develop into customary norms
Committee on the Rights of the Child (Committee):
A Brief Introduction
12

Body of independent experts established under Article 43
to monitor implementation of CRC by State Parties

Mandate pursued through reporting mechanism intended
to engender dialogue with State Parties

Committee publishes non-binding yet authoritative
“General Comments” which provide interpretative
guidance on CRC provisions and thematic concerns
General Comment 6:
Treatment of Unaccompanied and Separated Children
Outside Their Country of Origin (GC6)
13
Issued to: “…draw attention to the particularly
vulnerable situation of unaccompanied and
separated children…”
And to: “…provide guidance on the protection, care
and proper treatment of unaccompanied and
separated children based on the entire legal
framework provided by the Convention on the Rights
of the Child…”
UN High Commissioner for Refugees (UNHCR):
A Brief Introduction
14

UNHCR established by the General Assembly

Mandated to lead and coordinate international action to
protect refugees and resolve refugee problems worldwide

Primary purpose to safeguard rights of refugees
UNHCR Guidelines:
A Brief Introduction
15
UNHCR issues guidelines on various facets of international
protection of asylum seekers and refugees

Guidelines on Child Asylum Claims Under Articles 1(A)(2)
and 1(F) of the 1951 Convention and/or 1967 Protocol relating
to the Status of Refugees (2009) (“Guidelines on Child
Claimants”)

Guidelines on Policies and Procedures in Dealing with
Unaccompanied Children Seeking Asylum (1997)
(“Guidelines on Unaccompanied Child Claimants”)
UNHCR Guidelines:
A Brief Introduction
16
Guidelines on Child Claimants intended to provide legal interpretative
guidance for, inter alia, governments, legal practitioners, decision makers
and the judiciary regarding asylum determinations
Guidelines on Unaccompanied Child Claimants intended to, inter alia,
promote awareness of the special needs of unaccompanied children and
the rights reflected in the CRC
UNHCR guidelines have been given persuasive value in U.S. case law
(Cardozo-Fonseca (1987 SCOTUS decision interpreting well founded
fear))
The Executive Committee (ExCom) of the
High Commissioner’s Program:
A Brief Introduction
17

ExCom is the governing body of UNHCR

It consists of 79 members including the United States

It issues Conclusions on International Protection which
contribute to development of international refugee law
Conclusion No. 107: Children at Risk:
A Brief Introduction
18

Provides operational guidance to States, UNHCR and
other relevant agencies and partners on the protection
of children affected by forced displacement and
statelessness

Outlines the main aspects of a comprehensive child
protection system
Relevant Principles and Rules
19
Non-discrimination, special protection and assistance, and best
interests of the child
Free legal counsel for children deprived of liberty
Free legal counsel for asylum seeking children
Non-discrimination:
CRC: Article 2(1)
20

One of four fundamental principles underlying the CRC

States Parties are required to respect and ensure the rights
in the Convention to each child within its jurisdiction and
subject to its territory without discrimination of any kind,
including on the basis of the child’s immigration status

Endorsed in other international and regional instruments
Non-discrimination:
Committee Interpretation: GC6: Paragraph 18
ExCom Interpretation: Conclusion 107: Paragraphs (b)(vii)
21
 GC6: The principle of non-discrimination applies to all dealings with UASC
 GC6: It prohibits discrimination on the basis of the status of a child being
unaccompanied or separated, a refugee, asylum seeker or migrant
 GC6: The principle of non-discrimination does not prevent but may call for
differentiation on the basis of different protection needs such as those
deriving from age
 Conclusion 107: Non-discriminatory enjoyment of rights and each child’s
right to life should be ensured
Best Interests of the Child:
CRC: Article 3(1)
22
 Another fundamental principle underlying the CRC
 Article 3(1):“In all actions concerning children, whether undertaken
by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of
the child shall be a primary consideration.”
 Invoked 8 times in 7 other Articles of the CRC
 Regional instruments also endorse best interests principle
 Familiar concept in U.S. family law
Best Interests of the Child:
Committee Interpretation: GC6: Paragraphs 19, 20 and 79
23
Not defined in the CRC. According to the Committee:

A determination of what is in the best interests of a child
requires a clear and comprehensive assessment of a child’s
identity, particular vulnerabilities and protection needs. This
assessment process should encompass certain safeguards.

For displaced children, the principle must be respected
throughout the displacement cycle so that durable solutions
address the protection needs of such children
Best Interests of the Child:
Committee Interpretation: GC6: Paragraphs 21 and 36
ExCom Interpretation: Conclusion 107: Paragraphs (b)(v)
24
GC6: States required to create the underlying legal framework
and to take necessary measures to secure the proper
representation of UASC’s best interests
GC6: Key procedural safeguards must be implemented in order
to ensure respect for the best interests of UASC. These include:
The provision of a legal representative (in addition to a
guardian) where UASC are in asylum, administrative or judicial
proceedings
Special Protection and Assistance:
CRC: Article 20(1) and GC6: Paragraph 36
25

Article 20(1): A child temporarily or permanently deprived
of his or her family environment… shall be entitled to
special protection and assistance provided by the State

Committee guidance interpreting Article 20(1) indicates
special protection and assistance encompasses provision of
legal representation where children are involved in asylum,
judicial or administrative proceedings
Children Deprived of Liberty:
CRC: Article 37(d)
26
“Every child deprived of his or her liberty
shall have the right to prompt access to legal
and other appropriate assistance, as well as
the right to challenge the legality of the
deprivation of his or her liberty before a court
or
other
competent,
independent
and
impartial authority, and to a prompt decision
on any such action.”
Children Deprived of Liberty:
Committee Interpretation GC6: Paragraph 63
27

To secure rights provided under Article 37(d), UASC
deprived of liberty shall be provided with prompt and
free access to legal assistance including assignment of a
legal representative

Children should have the opportunity to make regular
contact and receive visits from their legal counsel
Children Deprived of Liberty:
Committee Interpretation
28

Deprivation of liberty interpreted to include children
in conflict with the law and “…children placed in
institutions for the purposes of care, protection or
treatment, including… immigration institutions.”
Asylum Seeking Children:
CRC: Article 22(1)
29

States are required to ensure that children seeking
asylum or considered refugees receive appropriate
protection in the enjoyment of applicable rights in the
CRC and in other international human rights or
humanitarian instruments to which the State is a party
Asylum Seeking Children:
Committee Interpretation: GC6:
Paragraphs 21, 36, 68-70 and 72
30

UASC referred to asylum procedures should be provided
with qualified, free legal representation

Every effort should be made to render a decision promptly
and fairly

Legal representative should be present during all interviews
Asylum Seeking Children:
UNHCR Interpretation: Guidelines on Child Claimants:
Paragraph 5
31
Principles of non-discrimination and best interests of the
child inform both the substantive and procedural aspects of
the determination of a child’s application for refugee status
Asylum Seeking Children:
UNHCR Interpretation:
Guidelines on Child Claimants: Paragraphs 65 and 69 and
Guidelines on Unaccompanied Child Claimants: Paragraph 4.2
32

Because of their age, dependency and relative
immaturity, children should enjoy specific procedural
and evidentiary safeguards to ensure fair determinations

Children who are the principal applicants in an asylum
procedure are also entitled to a legal representative
Asylum Seeking Children:
ExCom Interpretation:
Conclusion 107: Paragraphs (a) and (c)
33

Provides operational guidance for States (and other
actors) including through identification of components
of a comprehensive child protection system

Aims to strengthen protection of children at risk

Children at heightened risk include UASC and children
who do not have access to child-sensitive asylum
procedures
Asylum Seeking Children:
ExCom Interpretation: Conclusion 107: Paragraph (g)(viii)
34
Conclusion 107 recommends that States (and other actors)
prevent children being put at heightened risk by
providing qualified free legal representation to UASC
Potential Arguments
35
- 5 potential arguments: United States must provide free legal
representation where access to legal representation inadequate
- 3 broad arguments potentially applicable to all UASC
- 2 more limited arguments covering specific subcategories of UASC
- Intended to provide a broad framework within which to design
advocacy and campaign strategies promoting a right to free legal
counsel for UASC
Potential Arguments (General)
36
Respect for the best interests of the child requires procedural
safeguards for UASC including the provision of free legal counsel in
immigration proceedings
Children temporarily or permanently deprived of their family
environment have right to free legal counsel
Fairness/access to justice for UASC necessarily requires free legal
counsel
Potential Arguments (Specific)
37
Detained UASC have a right to free legal counsel
UASC seeking asylum have a right to free legal counsel
(1) Best Interests of the Child Support
A Right to Free Legal Counsel
38
Step 1 (Slide 39): Non-discrimination principle requires that
best interests of the child is a primary consideration in all
actions concerning UASC
Step 2 (Slide 40): Respect for best interests of UASC requires
substantive and procedural safeguards
Step 3 (Slide40): Where UASC are referred to administrative,
judicial or asylum proceedings, key procedural safeguards
include provision of a legal representative
(Slide 41): Areas for further research
(1) Best Interests of the Child Support
A Right to Free Legal Counsel
Non-discrimination principle imposes obligation to respect and ensure all
the rights in the CRC to all children irrespective of status
One such fundamental right relates to the best interests of the child – that in
all actions concerning children, best interests is a primary consideration
The best interests of UASC in the United States must be a primary
consideration in all actions concerning them
39
(1) Best Interests of the Child Support
A Right to Free Legal Counsel
40
According to Committee guidance:
 Respect for best interests requires substantive and
procedural safeguards
 Where UASC are referred to administrative, judicial or
asylum proceedings, key safeguards include the
provision of a legal representative
(1) Best Interests of the Child Support
A Right to Free Legal Counsel
41
Further research could be undertaken on application of best
interests concept to procedural safeguards in civil
proceedings through:
Review of relevant literature
Review of regional and national jurisprudence
Exhaustive review of Committee recommendations and
reports
(2) Special Protection for Children Deprived of Family
Environment Includes Right to Free Legal Counsel
42
Step 1 (Slide 43): Article 20(1) provides an entitlement to
special protection and assistance for children temporarily or
permanently deprived of their family environment
Step 2 (Slide 44): UASC fall within Article 20(1)
Step 3 (Slide 44): Article 20(1) encompasses provision of
legal representation, according to the Committee
(Slide 45): Areas for further research
(2) Special Protection for Children Deprived of Family
Environment Includes Right to Free Legal Counsel
43
 Article 20(1) recognizes heightened vulnerability of children
temporarily or permanently deprived of family environment
 Article 20(1) provides an entitlement to special protection
and assistance for such children
 Article 20(1) requires special protection and assistance to
be provided by the State
(2) Special Protection for Children Deprived of Family
Environment Includes Right to Free Legal Counsel
44

As children temporarily or permanently deprived of
their family environment, UASC fall within the
protection afforded under Article 20(1) of CRC

Committee guidance in paragraph 36 interpreting
Article 20(1) indicates that children involved in
asylum, administrative or judicial proceedings
should be provided with legal representation
(2) Special Protection for Children Deprived of Family
Environment Includes Right to Free Legal Counsel
45
Further research could be undertaken on interpretation of
“special protection and assistance” and interpretation of
“protection and assistance” through:
 Review of relevant literature
 Review of regional and national jurisprudence
 Exhaustive review of Committee recommendations and
reports
(3) Fairness/Access to Justice Requires
Provision of Free Legal Representation
46
Step 1 (Slide 48): Article 20(1) and Article 22 (1) require the
provision of special protection and assistance to children
temporarily and permanently deprived of their family
environment and appropriate protection and humanitarian
assistance to asylum seeking children, respectively
Step 2 (Slide 49):States required to provide legal counsel,
according to Committee’s interpretation of Articles 20(1) and
22(1)
(3) Fairness/Access to Justice Requires
Provision of Free Legal Representation
47
Step 3 (Slide 50): Articles 20(1) and 22(1) and GC6 interpretations
together arguably reflect attempt to incorporate notions of
fairness and access to justice by accommodating specific
protection needs of UASC
Step 4 (Slide 51): UNHCR Guidelines also correlate provision of
legal counsel with notions of fairness
Step 5 (Slide 52): Fairness/access to justice requires provision of
legal representation for UASC in asylum, administrative and
judicial proceedings
(Slide 53): Areas for further research
(3) Fairness/Access to Justice Requires
Provision of Free Legal Representation
48
Article 20(1): Children temporarily or permanently deprived
of their family environment shall be entitled to special
protection and assistance from the State
Article 22(1): States must take appropriate measures to
ensure that asylum-seeking children receive appropriate
protection and humanitarian assistance
(3) Fairness/Access to Justice Requires
Provision of Free Legal Representation
49

GC6 36 (re Article 20(1)): Children should be provided with
legal representation where they are involved in administrative,
judicial or asylum procedures

GC6 68-69 (re Article 22(1)): UASC should, in all cases, be
given access, free of charge, to a qualified legal representative

GC6 70 (re Article 22(1)): Refugee status applications filed by
UASC shall be given priority and every effort should be made to
render a decision promptly and fairly
(3) Fairness/Access to Justice Requires
Provision of Free Legal Representation
50
Arguably, Articles 20(1) and 22(1) and the Committee interpretation
implicitly incorporate notions of fairness and equity by:
Recognizing specific protection needs of UASC in circumstances where
they are navigating asylum, judicial or administrative proceedings
Attempting to ensure that UASC who by nature of their age do not have the
capacity to represent themselves have a fair opportunity to defend and enjoy
their rights
Highlighting the inadequacy of mere guardianship where UASC navigating
asylum, administrative or judicial proceedings
(3) Fairness/Access to Justice Requires
Provision of Free Legal Representation
51
In its Guidelines on Child Claimants (65 and 69), UNCHR
also correlates provision of legal representation with notions
of fairness
 Because of their age, dependency and relative immaturity,
children should enjoy specific procedural safeguards,
including legal representation, to ensure fair refugee
status determination decisions
(3) Fairness/Access to Justice Requires
Provision of Free Legal Representation
52
Fair asylum, judicial or administrative proceedings are
necessary to identify durable solutions that address all the
protection needs of UASC, which according to the Committee,
is the ultimate aim of addressing the fate of UASC
Fairness requires that individuals who do not have the
capacity to protect their legal rights be provided with legal
counsel in asylum, judicial and administrative proceedings
(3) Fairness/Access to Justice Requires
Provision of Free Legal Representation
53
Further research should be undertaken on the scope and content of “special
protection and assistance”, “appropriate measures” and “appropriate
protection and assistance” as well as on procedural safeguards for UASC
consistent with notions of fairness and access to justice:

Review of relevant literature

Review of regional and national jurisprudence

Exhaustive review of Committee documents including its
recommendations to State Parties
Specific Arguments
54
Final two arguments apply to limited categories of UASC:
 Detained UASC
 Asylum-seeking UASC
(4) Detained UASC Have a
Right to Free Legal Counsel
55
Step 1 (Slide 56): UASC deprived of liberty shall be provided
with prompt and free access to legal assistance including the
assignment of a legal representative, according to Article
37(d) and GC6 63
Step 2 (Slide 57): Committee’s broad interpretation of
deprivation of liberty expands scope of protection
Step 3 (Slide 58): Applies to UASC in DHS and DHScontracted detention facilities and UASC placed in facilities
contracted by ORR
(Slide 59): Areas for further research
(4) Detained UASC Have a
Right to Free Legal Counsel
56
Article 37(d): Children deprived of liberty have a
right to prompt access to legal assistance
GC6 63: Article 37(d) interpreted to include prompt and
free access to legal assistance including appointment of a
legal representative
(4) Detained UASC Have a
Right to Free Legal Counsel
57
 Committee’s broad interpretation of deprivation of
liberty:
“…the rights of a child deprived of his/her liberty, as recognized
in the Convention, apply with respect to children… placed in
institutions for the purposes of care, protection or treatment,
including… immigration institutions”
(4) Detained UASC Have a
Right to Free Legal Counsel
58
Applies to children in:
 DHS and DHS-contracted detention facilities; and
 UASC placed in facilities contracted by ORR/HHS for
the purposes of care and protection
(4) Detained UASC Have a
Right to Free Legal Counsel
59
Areas for further research include:
Examination of State practice re Article 37(d) (including as
interpreted by Committee) and determination of customary
status:


Review of State Party reports submitted to Committee
Review of national laws and policies
Research on efforts leading to implementation of national laws
consistent with Article 37(d) to determine advocacy and
campaign lessons for U.S.-based advocates
(5) UASC Seeking Asylum Have a
Right to Free Legal Representation
60
(Slide 61): Importance of legal counsel for UASC seeking
asylum
Step 1: (Slide 62): Under Article 22(1), States required to
ensure that asylum seeking children receive appropriate
protection
Step 2: (Slide 63): UASC seeking asylum should be given free
access to legal representative, according to the Committee
Step 3: (Slide 64): UNHCR Guidelines buttress argument
(Slides 65-67): Areas for further research
(5) Importance of Legal Representation for
UASC in U.S. Asylum Proceedings
61
 Asylum proceedings in the United States are complex
 Research shows respondents in immigration court have
significantly increased chance of gaining asylum if represented
 Chance of gaining asylum impacted by real risk that children may
not be able to articulate subjective fear and relevant experiences
necessary to fall within the definition of a refugee
 Chance of gaining asylum could also be impacted where
adjudicators are unfamiliar with forms and manifestation of
persecution experienced by children (e.g., under-age recruitment,
trafficking, sexual exploitation, female genital mutilation, forced
marriage, persecution of kin)
(5) UASC Seeking Asylum Have a
Right to Free Legal Representation
62
Article 22(1): State Parties must take appropriate
measures to ensure that asylum-seeking children receive
appropriate protection in the enjoyment of rights in the
CRC and rights in other human rights and humanitarian
instruments to which the State is a party
(5) UASC Seeking Asylum Have a Right to
Free Legal Representation
63
 GC6 69: UASC seeking asylum should, in all cases, be
given access, free of charge, to a qualified legal
representative
 GC6 70: Refugee status applications filed by UASC shall be
given priority and every effort should be made to render a
decision promptly and fairly
 GC6 72: The legal representative should be present at all
interviews with the child
(5) UASC Seeking Asylum Have a
Right to Free Legal Representation
64
UNHCR Guidelines on Child Claimants:
 Non-discrimination and best interests inform procedural
aspects of determination of a child’s refugee status
 Qualified legal representation for children who are
principle applicants in asylum proceedings is a minimum
procedural safeguard
(5) UASC Seeking Asylum Have a
Right to Free Legal Representation
65
Further research includes staying abreast of developments in
Europe regarding the proposed recast of the Council Directive on
Minimum Standards on Procedures in Members States for
Granting and Withdrawing Refugee Status.
Article 21(4) of proposed recast: Subject to limited exceptions,
“unaccompanied minors shall be granted free legal assistance with respect
to all procedures provided for in this directive”
Could provide lessons for advocacy in the United States
(5) UASC Seeking Asylum Have a
Right to Free Legal Representation
66
Further research should also be undertaken on current practice
in national jurisdictions regarding legal representation to UASC
in asylum proceedings
Government funded legal aid schemes in the United Kingdom,
Canada and New Zealand provide legal representation to UASC
in certain circumstances - research could also be undertaken on
the advocacy strategies which resulted in the provision of legal
aid to determine lessons for advocacy in the United States
(5) UASC Seeking Asylum Have a Right to
Free Legal Representation
67
Additional areas for research include national/regional case
law to determine existence of persuasive pronouncements
on the right to counsel for UASC in asylum proceedings
Where to from Here?
68
PRACTITIONERS CAN PLAY A KEY ROLE
IN RAISING ARGUMENTS
BEFORE KEY POLICYMAKERS
REGARDING THE
INTERNATIONAL HUMAN RIGHT TO COUNSEL
FOR UASC IN U.S. IMMIGRATION PROCEEDINGS
How can we help you in this task?
69
WHAT ELSE CAN WE DO NOW
TO MAKE THESE ARGUMENTS BETTER
AND ASSIST YOU TO RAISE THEM
BEFORE POLICY MAKERS?
ONE WAY YOU CAN HELP ANSWER THIS QUESTION
IS TO RESPOND TO THE FOLLOWING
FEEDBACK SURVEY
Feedback Survey
70
1.
Which of these potential arguments did you find most persuasive and why?
2.
Which of these potential arguments would you prioritize in terms of (a) further
research, and (b) advocacy campaigns and strategies?
3.
Do you have thoughts on how any of the potential arguments could be
improved?
4.
Do you know of additional sources of international human rights law on these
issues?
5.
Do you have thoughts on any additional arguments that could be utilized to
support the right to counsel for UASC in U.S. immigration proceedings based on
(a) the international legal materials presented in this webinar or (b) any other
international or regional materials?
6.
Do you have any other feedback regarding the potential arguments or on how we
can improve this webinar?
An International Human Right to
Free Legal Counsel for UASC in
U.S. Immigration Proceedings
71
•S a n j u l a W e e r a s i n g h e :
sanjula.weerasinghe@gmail.com
•A n d r e w S c h o e n h o l t z :
schoenha@law.georgetown.edu
•S a r a h B r o n s t e i n : s b r o n s t e i n @ c l i n i c l e g a l . o r g