This Article proposes a novel statutory argument in favor of finding a categorical right to appointed counsel for unaccompanied minors (UMs) using the Immigration and Nationality Act (INA)’s fair hearing provision as the basis for this right. We provide the historical framework behind the enshrinement of these two rights and then argue that Congress never intended to preclude appointed counsel. We further propose that the Trafficking Victims Protection Reauthorization Act (TVPRA) grants UMs a positive liberty interest,14 and we use this statutory interest as the basis of an original means of surmounting the Lassiter presumption that only a loss of physical liberty requires appointed counsel. We conclude by positioning UM removal hearings within the current landscape of the appointment of counsel doctrine (appointment doctrine) to demonstrate an increased likelihood of success in finding a categorical right to appointed counsel using the fair hearing provision and the TVPRA as a positive liberty interest.
Shani M. King & Nicole Silvestri Hall, Unaccompanied Minors, Statutory Interpretation, and Due Process, 108 Calif. Law. Rev. 1 (2020)