Volume 31
Issue 3
Spring '17

Current Developments in the Legislative Branch: The Fair Day in Court for Kids Act: A Necessary but Unlikely Step to Increase Representation in Immigration Proceedings

Written By: Guohao Qu, Michael Fakhoury, James O’Toole, and Paul Mayer


In both the 114th and 115th Congresses, Representatives and Senators have introduced versions of the “Fair Day in Court for Kids Act”1 to address the shortfalls in immigrant representation during removal proceedings. These shortfalls are exacerbated by the influx of unaccompanied alien children (“unaccompanied children”) from Honduras, El Salvador, and Guatemala (“Northern Triangle countries”).2 Federal law does not currently recognize a right to counsel in immigration proceedings. Therefore, unaccompanied children who cannot find or afford an attorney have to plead their own case in immigration court.3 Senate Bill 2540 “The Fair Day in Court for Kids Act” seeks to address the barriers to understanding and presenting possible defenses to removal caused by the complexity,4 and the frequent presence of a language barrier during those proceedings.

The Act seeks to address these barriers by granting a right to an attorney for unaccompanied children, who often face significant challenges retaining one.5 The Act requires representation in immigration proceedings for unaccompanied children by mandating the Attorney General to appoint counsel to these children at the government’s expense, if necessary.6 Research indicates having an attorney increases the chances of staying in the U.S. dramatically.7 Congresswoman Zoe Lofgren introduced the most recent version of the bill in the House of Representatives on April 6th, 2017.8

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1. e.g. S.2540, 114th Cong. (2016) (“S.2540”); H.R. 2043, 115th Cong. (2017) (“H.R. 2043”).

2. 6 U.S.C. §279(g)(2) (2008) defines “unaccompanied alien child” as:

“(A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom—(i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.”

3. See 8 U.S.C. §1362 (2017) (“[T]he person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel.”)

4. Baltazar-Alcazar v. INS, 386 F.3d 940, 948 (9th Cir. 2004) (describing this complexity described as “with a small degree of hyperbole . . . second only to the Internal Revenue Code in complexity.”)

5. See The 2014 Humanitarian Crisis at Our Border: A Review of the Government’s Response to
Unaccompanied Minors One Year Later: Hearing Before the Sen. Comm. On Homeland Security and
Government Affairs., 114th Cong. 2 (2015) (statement of Juan P. Osuna, Director of Exec. Office of
Immigration Review, Dep’t of Justice).

6. See S.2540, §2(c).

7. See TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE, REPRESENTATION FOR UNACCOMPANIED CHILDREN IN IMMIGRATION COURT, (2014), http://trac.syr.edu/immigration/reports/371/#f1/ (indicating unaccompanied children with representation are six times more likely to stay in the United States on average than those without representation.)

8. H.R. 2043, 115th Cong. (2017).