Jurisprudence

Defenseless Children

It’s unconscionable that many kids detained at the border don’t have lawyers at their immigration hearings.

At center, a woman holds a child and a plastic bag.
Dozens of women, men, and their children, many fleeing poverty and violence in Honduras, Guatamala, and El Salvador, arrive at a bus station following release from Customs and Border Protection on June 23 in McAllen, Texas.
Spencer Platt/Getty Images

Last week, the Texas Tribune reported that children who’ve been separated from their parents at the border are being ordered to show up for deportation proceedings. “We were representing a 3-year-old in court recently who had been separated from the parents,” a lawyer said. “And the child—in the middle of the hearing—started climbing up on the table. It really highlighted the absurdity of what we’re doing with these kids.”

Sadly, what’s unusual about that story is that the 3-year-old had a lawyer. In immigration proceedings, children, just like adults, have a right to an attorney “at no expense to the Government.” What that means in practice is that if a child cannot afford an attorney or secure one pro bono, she must represent herself against an experienced government prosecutor. Under immigration law, it’s the immigrant’s job to prove she’s eligible for protections like asylum or lawful permanent residence. Unrepresented children must not only defend themselves in court, but they are also tasked with completing complicated immigration forms, assembling necessary evidence, and making their cases before the court, all on their own.

The government’s position on children’s ability to represent themselves in court hearings has long been woefully disconnected from reality. Jack Weil, an assistant chief immigration judge who is currently in charge of training his fellow judges, famously said in 2016, “I’ve taught immigration law literally to 3-years-olds and 4-year-olds.” Despite what Weil may believe, study after study tells us that having a lawyer can make immigrants up to 10 times more likely to win their cases.

As an immigration lawyer, I have regularly represented children in deportation proceedings, including kids as young as 5 and 6 years old. In those cases, I had to interview relatives to understand family history and determine whether my clients had a defense to deportation. A child without a lawyer has no one to do this on her behalf.

Some deportation defenses require legal action outside of the immigration court. For example, to apply for a special visa for abused, neglected, or abandoned children that leads to lawful permanent residence, children must navigate a state court and multiple federal government subdivisions. As a first step, the child or a caretaker must petition a state court to make findings about the child’s best interests and whether the child was abused, neglected, or abandoned. If the state court makes those findings, then the child must file a petition with U.S. Citizen and Immigration Services within the Department of Homeland Security. If approved, the child then may submit a lawful permanent residence application to the immigration judge asking for a court hearing to decide the case. In a study of best practices for representing child migrants, advocates described the notion that children could make it through this process on their own as “preposterous.”

While it’s always been horrific that children are forced to represent themselves in deportation proceedings, this problem is likely to get worse. The Trump administration has threatened to cut funds for representation programs, leaving it to local and state governments to expand access to counsel in immigration proceedings. The administration has also been chipping away at existing child protections while justifying its actions with anti–child immigrant rhetoric. Regarding migrant children, Trump said, “They look so innocent. They’re not innocent.” His Attorney General Jeff Sessions called unaccompanied minors “wolves in sheep’s clothing.”

The child immigrant advocacy group Kids in Need of Defense has painstakingly documented Trump’s coordinated attack on immigrant children, which it calls “death by a thousand cuts.” Early in his presidency, Trump announced his intention to end Deferred Action for Childhood Arrivals, an Obama-era program that allowed hundreds of thousands of high-achieving undocumented people to come out of the shadows. In June, Sessions issued an immigration decision, overruling well-settled asylum law, that will lead to devastating consequences for both women fleeing domestic violence and immigrant children—nearly 60 percent of recent child migrants are fleeing violence, often at the hands of family members and gangs. More recently, following Trump’s executive order regarding family separation, the Department of Justice filed a motion to roll back portions of the Flores settlement, a court agreement that sets forth the minimum standards for detaining immigrant children.

Even the Office of Refugee Resettlement, the agency tasked with caring for unaccompanied immigrant children, has been weaponized against them. Under new policies, the agency is shifting away from its child welfare focus, aiding law enforcement and gang task forces, expanding jail-like beds for youth, and holding children who’ve been labeled as gang members until their 18th birthdays so they can be sent to adult immigration jail.

This past fall, I undertook a study with Rachel Prandini of the Immigrant Legal Resource Center, to examine the trend of using gang allegations in immigration proceedings. Immigrant advocates from coast to coast told us they’ve seen an increase of gang allegations in the past two years, making it more likely their clients will be detained, denied protections, and ultimately deported. Allegations were often flimsy, with immigration officials claiming that certain popular sports team gear and colors are automatically “gang apparel.”

I saw the trend firsthand when I represented a high school student, “José,” who was seeking lawful permanent residence based on an approved special visa for neglected children. Unbeknownst to José, a school safety officer forwarded his name for inclusion in a gang database, based on a rumor from another student and because he was seen in the vicinity of another child who was supposedly in a gang. Immigration officials threw José into immigration detention and told an immigration judge that José was a confirmed gang member, submitting Facebook pictures of him in a Chicago Bulls cap as “evidence.” After more than a year in jail, José was deported.

José’s case shows that even those immigrant children who do have legal representation are rarely treated fairly. The president’s recent executive order, which calls for the court system to prioritize the cases of detained families, will ensure that continues. Cases involving children and families have been expedited in the past, forming “rocket dockets” in which defendants had no time to get notice of their hearings let alone to prepare or find attorneys.

When pro bono providers are stretched beyond capacity, a majority of immigrants will be left unrepresented. According to immigration court data, it is “exceedingly rare” for unrepresented families to file necessary applications in court to seek asylum or other protections. A lawyer’s presence doesn’t just help defendants. It also benefits the immigration system overall, increasing efficiency and court appearance rates. While it’s important to note that a majority of immigrants do show up to scheduled immigration court hearings, studies show that the appearance rate for children with lawyers is more than 95 percent, an especially high figure.

For immigrant children, reunification with their parent or parents is just the beginning of their legal challenges. They must continue to fight their cases in immigration courts, where a legal loss could mean imminent death for an asylum seeker. Given these high stakes, it would be immoral for us to leave these children defenseless. Too often, that’s exactly what we’re doing.