Chicago Journal of International Law


In this Comment, I do not intend to argue for new substantive laws, either international or domestic, concerning the rights of aliens. My argument is that a procedural standard must be followed to give traction to substantive rights that already exist. Without the provision of legal assistance in legal proceedings, the rights granted to children under international treaty law, domestic law, and customary international law are in danger of being nullified. In Section II of this Comment, I discuss trends in international law regarding aliens and children. Though the clearest sources of international law do not explicitly provide the right to free legal assistance for children in removal proceedings, trends in international law suggest that such a right may exist, at least as an emerging norm. In Section III, I consider various grounds for assessing the strength of this right under international law, including (1) the unique vulnerabilities of unaccompanied alien children, (2) the combined consideration of various international treaties conferring rights on aliens and children, (3) the international legal prohibition on refoulement, (4) the requirement that aliens and nationals receive equal treatment under the law, (5) a critique of the criminal/noncriminal distinction, (6) due process for aliens, and (7) state interests and other considerations. In Section IV, I discuss the substance of the right to free legal assistance, including the use of attorneys and guardians, and potential remedies for failures to provide proper procedure. Finally, I conclude that the right to free legal assistance for children in removal proceedings is a necessary component of due process and an emerging norm under international law.