Guest post by Jasmina Nogo, an attorney and recent graduate of the North Carolina Central University School of Law. In her legal practice Jasmina has served low-income communities in North Carolina facing obstacles in immigration, education, domestic violence, and housing. Prior to becoming a lawyer she worked as a social worker and community organizer with Latino/a communities facing hardships due to their immigration status. Jasmina plans to continue advocating for immigrants in the United States incorporating legal advocacy and social work into her practice. This post is the third installment of the Border Criminologies Themed Week on Migration, Criminal Law and Criminal Justice organised by Ana Aliverti.

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‘Alberto’ was only sixteen years old when he was arrested for participating in an attempted robbery with two other children. The prosecution dropped charges against the young man who planned the robbery in exchange for his testimony against the other two. The second boy was sentenced to six months in a juvenile detention facility. Alberto was transferred to adult court where he was convicted and sentenced to serve time in adult prison until he turned twenty-eight. Upon release he was immediately moved to immigration custody and deported back to Honduras, a country he hadn’t been to since he was four years old. ‘Amira’ was brought to the United States by her parents when she was two years old from a small nation in the Middle East. At the age of seventeen, Amira was involved as an aggressor in a fight with a peer. She was arrested and charged with aggravated assault in the juvenile justice system. Her defense attorney advised her to voluntarily waive juvenile jurisdiction. However, she wasn’t advised about the immigration consequences of the voluntary waiver to adult court and of her subsequent plea, which led to her almost being deported. As soon as she completed her sentence, Amira was snatched by US Immigration and Customs Enforcement (ICE) and placed into deportation proceedings. Her adult conviction automatically led to an immigration detainer. She was to face the proceeding alone, as neither her juvenile defender nor public defender had any remaining legal obligation towards her.

Each year in the United States, an estimated 200,000 children under the age of eighteen are tried as adults. While juvenile dispositions don’t constitute criminal convictions and therefore don’t carry immigration consequences, if the child is transferred to adult court, the conviction will count as a conviction for immigration purposes―as seen in the above cases of Alberto and Amira. Additionally, although the child is appointed a state defender in criminal court, he or she is not entitled to counsel in immigration court, even though the government is always represented by a lawyer. Therefore, children are forced to represent themselves in deportation proceedings that are often more complex and more serious than most juvenile delinquency cases. A failure to provide government-appointed counsel in the immigration proceeding may be a violation of the minors’ due process rights under the Fifth and Fourteenth Amendments. Additionally, the failure of a juvenile defender to adequately advise the child about the collateral consequences associated with the transfer violates the 2010 Supreme Court ruling in Padilla v. Kentucky, where the Court held that criminal defense attorneys must advise non-citizen clients about the deportation risks of a guilty plea.

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Under the US Constitution’s Due Process Clause, the government has a duty to provide children facing juvenile delinquency charges with legal representation. The Constitution, therefore, guarantees children this safeguard notwithstanding the civil, rather than criminal, character of juvenile delinquency proceedings. The Supreme Court based its justification for a right to counsel in juvenile proceedings on the risk of incarceration and the deprivation of liberty that result from an adjudication of delinquency. Similarly, in immigration proceedings resulting from a juvenile transfer to the adult courts, a child may face prolonged immigration detention―for instance, 32% of immigrants in ICE detention spend between thirty and sixty days in detention―and deportation to their country of origin.

In addition to government-appointed counsel in deportation proceedings, the duties mandated by Padilla should extend to the juvenile transfer process. Under Padilla, defense attorneys must inform their clients whether their pleas carry even a risk of deportation. The Court recognized that changes in immigration law over the last fifty years have dramatically raised the stakes of a noncitizen’s criminal conviction and that ‘deportation is an integral part―indeed, sometimes the most important part―of the penalty that may be imposed on non citizen defendants who plead guilty to specified crimes.’ The Court recognized that although removal proceedings are civil in nature, deportation is nevertheless intimately related to the criminal process. Undocumented children convicted of adult crimes descend into the immigration pipeline and then fall through the cracks of the immigration system. Meanwhile, nothing in the system protects them or allows their voices to be meaningfully heard in court. These children are particularly vulnerable and the precariousness of their immigration status must be taken into account when considering their transfer into the adult criminal justice system. Furthermore, they must be provided legal counsel to represent them in immigration court and seek relief from deportation. Anything short of that is an egregious violation of international human rights practices and sets the United States apart from the rest of the world.

Themed Week on Migration, Criminal Law and Criminal Justice:

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How to cite this blog post (Harvard style):

Nogo, J. (2015) The Deportation Trap of Juvenile Transfers: How A Child Becomes A Desperado in the Eyes of the Law. Available at: http://bordercriminologies.law.ox.ac.uk/the-deportation-trap-of-juvenile-transfers/ (Accessed [date]).