Press Release

Gillibrand Introduces Bill To Guarantee Access To Counsel For Children During Immigration Removal Proceedings

Mar 23, 2021

U.S. Senator Kirsten Gillibrand today introduced the Funding Attorneys for Indigent Removal (FAIR) Proceedings Act, a bill that guarantees access to government-funded legal counsel during removal proceedings for children, individuals with disabilities, victims of abuse, torture, and violence, and those living at or below 200% of the federal poverty line. 

Unlike American constitutional guarantees in criminal cases, those subjected to immigration removal proceedings do not have a guaranteed right to counsel. According to an American Immigration Council study, “only 37 percent of all immigrants and 14 percent of detained immigrants go to court with lawyers on their side.” Noncitizens, including children, must often argue their case without legal representation.  

“Fairness and due process shouldn’t be available just to those who can afford the resources needed to navigate a vast and complex immigration system,” said Senator Gillibrand. “I am proud to introduce the FAIR Proceedings Act because guaranteed access to counsel will get us closer to reimagining and rebuilding an immigration court system that recognizes the dignity of children and vulnerable individuals, who deserve a fair shot at defending their cases. I’m also calling on the attorney general to consider necessary updates to the immigration courts system because fixing the crisis at the border requires measured, thoughtful, and long-term vision.”

“The FAIR Proceedings Act ensures the fundamental fairness that all children need and deserve in their immigration proceedings – the right to a lawyer to stand by their side as they face an immigration judge,” said KIND President Wendy Young. “The enormity of the stakes to the child cannot be understated, and as research has shown, whether a child receives the protection for which she is eligible often hinges on whether or not they are fortunate enough to have an attorney. The FAIR Proceedings Act will eliminate this roll of the dice justice and allow all children to have a fair chance to make their case for U.S. protection in immigration court.”

“The New York City Bar Association reiterates its longstanding position in favor of expanding legal representation in immigration court proceedings and urges Congress to pass the FAIR Proceedings Act as an essential measure to promote fairness and justice in the immigration courts. Access to counsel is especially important in immigration cases, due to the high stakes, complexity of the law, and special vulnerabilities of respondents. Immigration court has been likened to adjudicating death penalty sentence cases in traffic court. Children and survivors of torture should not be compelled to appear without counsel in proceedings where an incorrect decision could result in their prolonged detention, denial or loss of immigration status, separation from their families, and even deportation to possible persecution and death,” said Danny Alicea, Chair, Immigration & Nationality Law Committee at the New York City Bar Association. 

“The FAIR Proceedings Act is a powerful step towards securing much needed legal representation for the most vulnerable immigrants, many of whom face torture, arrest, and death if forced to return to their home countries. Although the immigration system is incredibly complex and the stakes are high, more than half of non-citizens, including children, survivors of trafficking, and other vulnerable populations, do not have representation. The FAIR Proceedings Act will ensure that many of those non-citizens who are most in need of protection will have the representation and due process that they deserve,” said Beth Goldman, President and Attorney-In-ChargeNew York Legal Assistance Group (NYLAG).

In a Syracuse University analysis of immigration court data, 73% of unaccompanied children with representation were granted relief from removal and allowed to remain in the United States, whereas only 15 percent of unrepresented children were allowed to stay

U.S. Senators Markey (D-MA), Blumenthal (D-CT), Booker (D-NJ), Warren (D-MA), Padilla (D-CA), Kaine (D-VA), Merkley (D-OR), and Klobuchar (D-WI) co-sponsored the bill.

The bill is endorsed by Kids in Need of Defense (KIND), National Immigrant Justice Center (NIJC), Hispanic Federation, Young Center for Immigrant Children’s Rights, American Immigration Lawyers Association (AILA), Center for American Progress, The Immigration Hub, Lutheran Immigration and Refugee Service (LIRS), U.S. Conference of Catholic Bishops (USCCB), Church World Service (CWS), National Immigration Project, HIAS, Vera Institute of Justice, National Immigration Law Center (NILC), American Immigration Council, New York Legal Assistance Group (NYLAG), Make the Road New York, International Refugee Assistance Project (IRAP), NETWORK Lobby and Ohio Immigrant Alliance, as well as almost 100 groups across the country.  

Following the introduction of the FAIR Proceedings Act, Gillibrand also led her Senate colleagues in a letter to U.S. Attorney General Merrick Garland. In the letter, the Senators urge the Department of Justice (DOJ) to review and address the needs of the Immigration Court system to ensure that proceedings are fair, the most vulnerable are protected, and that the independence and authority of immigration judges is fully restored. Gillibrand also requested that DOJ consider COVID-19 safety measures to keep judges, attorneys, and defendants safe during court proceedings.  

Gillibrand previously introduced the Protection of Kids in Detention (PROKID) Act, which would provide a new, stronger layer of oversight to ensure and enforce transparency, protection, and accountability for all immigrant children in any kind of government custody.

The FAIR Proceedings Act would:

  • Require government-guaranteed legal counsel during removal proceedings for children, individuals with disabilities, victims of abuse, torture, and violence; and those at or below 200% of the federal poverty level.
  • Require legal orientation programs for all detained noncitizens at immigration facilities.
  • Ensure fairness and an equal playing field between respondents and government lawyers by guaranteeing the right to review documents that DHS plans to use against in removal proceedings.
  • Contribute to streamlining court processes and reducing the immigration court backlog. When a lawyer is present, clients are informed, prepared, and better understand the proceedings. Increased access to counsel will improve the entire court system’s functionality and efficiency through a reduction in delays and continuances.

Read the text of the legislation here.